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ELCDismissedNot stated in the extract (Machakos ELC, Originating Summons re Matuu/Ikaatini/676)· [2025] KEELC 7367 (KLR)

Mutisya & 8 others v Mulemba (Environment and Land Case 114 of 2019) [2025] KEELC 7367 (KLR)

Environment and Land Court
29 October 2025
3,283 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Machakos dismissed both sides' applications, refusing late substitution of a deceased plaintiff and refusing the landowner's demand for Kshs 8 million security for costs.

What this practically means

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Executive summary

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This ELC judgment at Machakos (Matheka, J) determines two interlocutory applications in a long-running adverse-possession suit over land parcel Matuu/Ikaatini/676, filed in 2019 by nine plaintiffs against the registered owner. The first application, dated 23rd January 2025, sought leave for the 3rd Plaintiff (since deceased, the suit having abated in 2022) to be substituted with Administrators Ad Litem out of time, leave to amend the Originating Summons, and striking out of pleadings filed by the firm of M. Mutinda & Associates. The court, applying the well-known amendment principles from Central Kenya Ltd v Trust Bank, held the application was a device to exit proceedings without paying costs, that substitution should have been sought before abatement rather than by amendment, and dismissed it with costs. The second application, dated 7th March 2025 by the Defendant, sought security for costs of Kshs. 8,000,000 under Order 26 Rule 1, citing the plaintiffs' lack of known assets and unpaid awarded costs. The court reviewed the authorities, including Shah v Sheti and Keystone Bank v I&M Holdings, and held that an applicant for security must prove inability to pay costs, not merely allege it; the Defendant made only general assertions and did not discharge its evidential burden. Noting also that it would be unfair to order the deposit at this interlocutory stage, the court dismissed the application, with costs to abide the outcome of the suit.

Key legal issues

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01

Whether substitution and amendment could be granted after the suit against the 3rd Plaintiff had abated

Holding

The application was refused as an abuse; substitution should have been sought before abatement, and the amendment sought to escape costs

Reasoning

The court noted the suit was filed in 2019 and the 3rd Plaintiff died, with the suit abating in 2022. The Applicants sought substitution through amendment of pleadings rather than a proper substitution application, which the court viewed as a device to exit the suit without paying awarded costs. The court found this contravened Order 8 of the Civil Procedure Rules and dismissed the application with costs.

p. 4
02

Whether security for costs should issue against the Plaintiffs

Holding

No - the Defendant failed to prove inability to pay costs and ordering security would be unfair

Reasoning

Under Order 26 Rule 1, security for costs is discretionary. The applicant must prove, not merely allege, that the plaintiffs would be unable to pay costs if unsuccessful. The Defendant made only a general assertion about lack of known assets and had not discharged its evidential burden. Further, at the interlocutory stage the court should not assess the merits; it would be unfair to order the deposit sought.

p. 7

Legal principles established

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  • Amendments should be freely allowed at any stage provided no prejudice or injustice not compensable in costs is caused
  • An order for security for costs is discretionary and must be exercised reasonably on the circumstances of each case
  • The applicant for security for costs must prove inability of the respondent to pay costs; mere allegation is insufficient
  • Poverty alone is not sufficient ground for an order for security for costs

Court orders

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  1. 1.The application dated 23rd January 2025 (substitution out of time and amendment of the Originating Summons) is dismissed with costs
  2. 2.The application dated 7th March 2025 (security for costs) is dismissed
  3. 3.Costs of the second application to abide the outcome of the suit
Jurisdiction invoked
Sections 1A, 1B, 3A and 63E of the Civil Procedure Act and Orders 8, 24, 26, 42 and 51 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mutisya & 8 others v Mulemba (Environment and Land Case 114 of 2019) [2025] KEELC 7367 (KLR)", Case Analysis (2025). Not stated in the extract (Machakos ELC, Originating Summons re Matuu/Ikaatini/676). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7367/eng@2025-10-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.