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ELCAllowedNot stated in the judgment as provided· [2026] KEELC 4243 (KLR)

Mbaru (suing on behalf of the Estate of Stephen Mbaru Gitara) v Hirani & another (Land Case E409 of 2024) [2026] KEELC 4243 (KLR)

Environment and Land Court
9 July 2026
MCMbogo C.G.
1,390 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a landowner to swap the defendant in her trespass case, confirming you can change parties anytime before trial.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 26th November 2025 by the plaintiff/applicant, the legal administrator of the estate of the late Stephen Gitara Mbaru, registered owner of LR No. 209/14479 (Grant IR No. 89160). She sought leave to join Lalji Hiran Lalhu as a defendant in place of Lalji Hirani, the current defendant, whom she alleged was in illegal occupation and developing the suit property. The application was brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 1 Rule 10(2) and Order 51 Rule 1 of the Civil Procedure Rules. The defendant opposed, arguing there was no bona fide mistake demonstrated, there was inordinate delay, the investigation report disclosed no ongoing trespass, and the application was an afterthought filed after his defence, causing him legal costs and reputational damage. The proposed defendant filed no response. The court considered Order 1 Rule 3 and Order 1 Rule 10(2) of the Civil Procedure Rules and applied Civicon Limited v Kivuwatt Limited, holding that joinder may occur at any stage where a common question of fact or law arises and where it causes no practical difficulty, unnecessary delay or costs. It held the plaintiff has the right to sue the party she believes committed the wrong; she had no claim against the current defendant, and his alleged costs were compensable. The court declined to rule on the trespass issue, reserving it for the hearing. The application was allowed: Lalji Hiran Lalhu was joined as defendant, leave to amend the plaint was granted within 3 days with service within 14 days, Lalji Hirani was struck out as a party and awarded the costs of the application.

Key legal issues

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01

Whether the plaintiff should be allowed to substitute the defendant (Lalji Hirani) with the proposed defendant (Lalji Hiran Lalhu) under Order 1 Rule 10(2) of the Civil Procedure Rules

Holding

The application was allowed: the proposed defendant was joined, leave to amend the plaint was granted, and Lalji Hirani was struck out, with costs of the application awarded to him.

Reasoning

The court applied Order 1 Rule 3 and Order 1 Rule 10(2) of the Civil Procedure Rules and the Civicon Limited v Kivuwatt Limited principles. It held that a plaintiff has the right to sue the party it believes committed the alleged wrong; the plaintiff, having investigated, believed the wrongs were done by the proposed defendant and had no claim against the current defendant. Joinder causes no real prejudice since legal costs incurred are compensable. The court declined to comment on the contents of the investigation report, reserving that for trial.

p. 3
02

Whether the alleged absence of ongoing trespass in the investigation report and the delay in bringing the application defeated the application

Holding

The court refrained from determining the merits of the trespass allegation, leaving it for hearing; delay and alleged costs did not defeat the substitution.

Reasoning

The defendant argued the investigation report disclosed no ongoing trespass and that the application was an afterthought filed after his defence. The court held it would not comment further on the report's contents, as those issues should be properly ventilated during the hearing. Alleged legal costs, being compensable, did not constitute prejudice sufficient to refuse joinder.

p. 3

Legal principles established

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  • Joinder of a party is permitted at any stage of proceedings, provided a common question of fact or law arises between the existing and intended parties; joinder will be refused only where it causes practical problems, is unnecessary, or occasions unnecessary delay or costs.

Court orders

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  1. 1.Leave granted to join Lalji Hiran Lalhu as a defendant in this suit
  2. 2.Leave granted to the plaintiff/applicant to amend the plaint to include Lalji Hiran Lalhu as a defendant, within 3 days, with service of the pleadings upon the defendant within 14 days thereafter
  3. 3.Lalji Hirani struck out as a party from the suit
  4. 4.Lalji Hirani awarded the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 1 Rule 3
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (1)

  • Civicon Limited versus Kivuwatt Limited and 2 Others
    [2015] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act; Order 1 Rule 10(2) and Order 51 Rule 1 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, "Mbaru (suing on behalf of the Estate of Stephen Mbaru Gitara) v Hirani & another (Land Case E409 of 2024) [2026] KEELC 4243 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4243/eng@2026-07-09

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