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ELCPartially Allowed· [2026] KEELC 602 (KLR)

Mwindi (Suing as the Administrator of the Estate of I. N.O.H. Machua Mbiriri alias Hylam Machua) v Gakami & another (Environment and Land Case E205 of 2023) [2026] KEELC 602 (KLR)

Environment and Land Court (court not expressly named; judge styled 'JUDGE')
6 February 2026
TMT. MURIGI
1,123 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court allowed a Plaintiff to amend her claim and add family members as co-Plaintiffs, since the Defendants showed no real prejudice.

What this practically means

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Executive summary

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By a Notice of Motion dated 21st July 2025 brought under Order 8 Rules 3(1), (2) and (5) and Order 1 Rules 10(2) and (14) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, the Plaintiff/Applicant sought leave to amend the Plaint, deemed filing of the annexed draft amended Plaint, joinder of Nicholas Mbiriri Kang'ethe, Micah Ngendo Machua and Lucy Wanjiku Kairu as additional Plaintiffs, and costs. The proposed parties were appointed administrators of the deceased's estate under a rectified grant dated 4th February 2025. Though duly served, the Defendants filed no response; the matter was canvassed by written submissions. Framing two issues - whether leave to amend should issue and whether joinder was merited - the court applied Section 100 of the Civil Procedure Act, Order 8 Rule 5, and the principles in Ochieng and Others v First National Bank of Chicago: amendments sought before hearing should be freely allowed absent injustice, with harm compensable by costs. The court found the amendment did not change the character of the suit nor introduce a new cause of action, the suit had not proceeded to hearing, and no specific prejudice was demonstrated. On joinder, Order 1 Rule 10(2) permitted addition of necessary parties; a certificate of rectification of the grant substantiated the claim, and joinder would not prejudice the Defendants. The court allowed the application: leave to amend was granted, the amended Plaint to be filed and served within 14 days, the Defendants granted 14 days after service to file an amended defence, the proposed parties joined as Plaintiffs, and the Applicant ordered to meet the costs of the application.

Key legal issues

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01

Leave to amend the Plaint

Holding

Amendment allowed; it does not change the character of the suit or introduce a new cause of action, and no prejudice was demonstrated

Reasoning

Section 100 of the Civil Procedure Act and Order 8 Rule 5 confer a discretion to amend so as to determine the real question in controversy. Amendments before hearing should be freely allowed absent injustice, compensable by costs. The amendment sought to add Plaintiffs and specify illegality, trespass and contempt; the suit had not proceeded to hearing and the Defendants showed no specific prejudice and would have an opportunity to respond.

p. 3
02

Joinder of the administrators of the deceased's estate

Holding

Joinder allowed under Order 1 Rule 10(2); the proposed Plaintiffs are necessary parties for effective resolution

Reasoning

Under Order 1 Rule 10(2), a person whose presence is necessary to enable the court effectually and completely to adjudicate may be added at any stage. The Applicant produced a certificate of rectification of the grant showing the proposed parties as administrators of the deceased's estate, and the joinder would not prejudice the Defendants.

p. 3

Legal principles established

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  • Amendments of pleadings sought before the hearing should be freely allowed if they can be made without causing injustice to the other side, and harm can be compensated by costs
  • A party whose presence is necessary to enable the court to effectually and completely adjudicate on all questions in the suit may be added at any stage

Court orders

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  1. 1.Leave is granted to the Plaintiff to amend the Plaint in terms of the annexed draft amended Plaint
  2. 2.The amended Plaint shall be filed and served within 14 days from the date hereof
  3. 3.The Defendant is granted leave to file and serve an amended defence within 14 days after service
  4. 4.The proposed parties are joined to the proceedings as Plaintiffs
  5. 5.The Applicant shall meet the cost of this application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 100
  • Civil Procedure RulesOrder 8 Rules 3(1), (2) and (5); Order 1 Rules 10(2) and (14)
  • Limitations Actreferred to in the Ochieng principles as 'the Limitations Act'

Cases cited (1)

  • Ochieng and Others v. First National Bank of Chicago
    Civil Appeal No. 147 of 1991
Jurisdiction invoked
Sections 1A, 1B, 3A and 100 of the Civil Procedure Act and Order 8 Rules 3(1), (2) and (5) and Order 1 Rules 10(2) and (14) of the Civil Procedure Rules

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, "Mwindi (Suing as the Administrator of the Estate of I. N.O.H. Machua Mbiriri alias Hylam Machua) v Gakami & another (Environment and Land Case E205 of 2023) [2026] KEELC 602 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/602/eng@2026-02-06

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