Mutisya & 8 others v Mulemba (Environment and Land Case 114 of 2019) [2025] KEELC 7367 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether substitution and amendment could be granted after the suit against the 3rd Plaintiff had abated
The application was refused as an abuse; substitution should have been sought before abatement, and the amendment sought to escape costs
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.
Whether security for costs should issue against the Plaintiffs
No - the Defendant failed to prove inability to pay costs and ordering security would be unfair
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.
Legal principles established
#- 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
#- 1.The application dated 23rd January 2025 (substitution out of time and amendment of the Originating Summons) is dismissed with costs
- 2.The application dated 7th March 2025 (security for costs) is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.