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ELCPartially AllowedPetition dated 14/07/2023 (E006 of 2023) — Machakos· [2025] KEELC 8700 (KLR)

Chase Bank Kenya Limited (Under Liquidation) & 2 others v County Government of Machakos & 4 others; Mathatani Limited & 2 others (Interested Parties) (Environment and Land Petition E001 of 2023) [2025] KEELC 8700 (KLR)

Environment and Land Court
8 December 2025
3,783 words in judgment
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The bottom line

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Kenya's Machakos Environment and Land Court refused to remove a party from Chase Bank's land petition, allowed amendments, and summoned government record-holders to testify.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos, delivered by A. Y. Koross, J on 8 December 2025, determines three notices of motion in a constitutional petition by Chase Bank (in receivership) concerning Land Reference Number 12498/4, allegedly acquired with misappropriated depositors' funds through an SPV, Mathatani Limited. First, the 3rd respondent's motion of 3/07/2024 sought his removal from the suit as an improperly joined party and the striking out of the petition for disclosing no reasonable cause of action against him. The court, applying Rule 5 of the 2013 Mutunga Rules (the Civil Procedure Rules invocation being a mere technical oversight), held that a cause of action subsists against the 3rd respondent in paragraphs 15, 17, 21-24 and 39 of the petition, that striking out is a draconian measure to be used sparingly, and that it would be premature to test the trespass claim against him. The motion was dismissed. Second, the petitioner's motion of 12/03/2025 sought leave to amend the petition to add reliefs on trespass against the 3rd respondent and an alternative declaration of an equitable mortgage. Guided by Institute for Social Accountability, the court granted leave, finding no bad faith, no new cause of action, and no irremediable prejudice; the 3rd respondent may file amended responses. Third, the unopposed cross-petitioners' motion of 20/06/2024 sought summonses to the Director of Business Registration Services, the Chief Land Registrar and the Director of Criminal Investigations; the court issued the summonses under Order 16 Rule 1, finding the officials custodians of relevant public records. Costs were made costs in the cause, the petitioner was given 21 days to file amended pleadings, a mention was set for the application of 3/06/2025, and no further applications were to be entertained except with leave.

Key legal issues

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01

Leave to amend the constitutional petition

Holding

Leave granted; the amendment is necessary for justice between the parties, does not introduce a new cause of action (trespass was already pleaded in paragraphs 35 and 38), and any prejudice is curable by costs and by allowing corresponding amendments by other parties

Reasoning

Rule 18 permits amendment at any stage. Guided by Institute for Social Accountability, the court holds amendment promotes determination of real issues. The trespass claim already existed against other parties; the amendment only extends relief to the 3rd respondent. The alternative equitable mortgage relief flows from paragraph 39. No bad faith, no undue delay, and the 3rd respondent may amend his pleadings in response, so no injustice.

p. 6
02

Whether a cause of action is disclosed against the 3rd respondent

Holding

Yes — a cause of action subsists against the 3rd respondent; his application to strike out his name and the petition is dismissed

Reasoning

Adopting the definitions in Diana Katumbi Kiio, Read v Brown and Letang v Cooper, the court finds material facts pleaded against the 3rd respondent in paragraphs 15, 17, 21, 22, 23, 24 and 39 of the petition, including allegations of fraudulent acquisition and misappropriation of depositors' funds. Striking out being a draconian measure, and the petitioner being entitled to join multiple respondents in doubt as to liability, it is premature to strike him out.

p. 8
03

Whether summonses should issue against the Director of Business Registration Services, Chief Land Registrar and Director of Criminal Investigations

Holding

Yes — unopposed; the officials are custodians of public documents relevant to the resolution of the issues, and Order 16 Rule 1 authorises the summonses

Reasoning

Order 16 Rule 1 of the Civil Procedure Rules authorises summonses to persons required to give evidence or produce documents. No party objected, and the three public officers are custodians of records on shareholding, land ownership and criminal investigation relevant to the amended petition and cross-petition. The motion dated 20/06/2024 is therefore merited.

p. 8
04

Procedural error by the 3rd respondent invoking Civil Procedure Rules instead of Rule 5 of the Mutunga Rules for striking out a petition

Holding

The error is a mere technical oversight; the court proceeds under Rule 5 which empowers it to strike out improperly joined parties

Reasoning

The 3rd respondent grounded his motion on the Civil Procedure Rules, but the correct framework for striking out constitutional petitions is Rule 5 of the 2013 Practice and Procedure Rules, whose sub-rules (a) and (d) cover joinder of respondents in doubt and striking out improperly joined parties. The court treats the misstatement as technical and entertains the motion on the correct provision.

p. 7

Legal principles established

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  • The court may permit amendment of pleadings at any stage of proceedings to determine the real questions in controversy, provided there is no undue delay, no new or inconsistent cause of action, no vested interest affected, and no injustice to the other side
  • Striking out pleadings is a draconian measure to be employed sparingly and only as a last resort in the clearest of cases

Court orders

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  1. 1.The notice of motion dated 3/07/2024 is dismissed
  2. 2.The Director of Business Registration Services, and/or his representative, is summoned to give evidence and/or furnish the petitioner with records regarding the shareholding and/or directorship of the 1st IP Mathatani Limited from incorporation to date
  3. 3.The Chief Land Registrar and/or his representative is summoned to give evidence and/or furnish the petitioner with all records relating to Land Reference Number 12498/4, including all its subdivisions
  4. 4.Subject to availability thereof, the Director of Criminal Investigations is summoned to give evidence and/or furnish the petitioner with an investigation report concerning Land Reference Number 12498/4
  5. 5.The petitioner to file and serve its amended pleadings in accordance with the draft amended petition within 21 days
  6. 6.Upon service, the respondents and interested parties shall have corresponding leave to file amended answers to the petition and/or statements of response where applicable
  7. 7.A mention date to be scheduled for hearing of the application dated 3/06/2025
  8. 8.Unless with the court's leave and subject to order (g), no further applications shall be entertained by the court
  9. 9.Costs shall be in the cause
Jurisdiction invoked
Article 159 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Orders 1 Rule 10(2), 2 Rule 15(1) and (2), 16 Rule 1 and 51 Rule 1 of the Civil Procedure Rules; Rules 5, 18 and 19 of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013

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, "Chase Bank Kenya Limited (Under Liquidation) & 2 others v County Government of Machakos & 4 others; Mathatani Limited & 2 others (Interested Parties) (Environment and Land Petition E001 of 2023) [2025] KEELC 8700 (KLR)", Case Analysis (2025). Petition dated 14/07/2023 (E006 of 2023) — Machakos. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8700/eng@2025-12-08

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