Muigai & 73 others v Njenga t/a Danjo Investment(s)

37th Applicant, Edith Mumbi Kamau, died on the 14th of November 2022 and that they were among the original applicants who instituted the suit against the Respondent. 3. The 1st Applicant avers that Alice Waithira Mwangi is a beneciary of the Estate of the 29th Applicant and that she was issued with a Grant of Letters of Administration Ad Litem on the 15th of October 2024 for the purpose of proceeding with prosecution of this suit on behalf of the Estate of the deceased 29th Applicant. 4. He further avers that Wilson Gachau Maina is a beneciary of the 37th Applicant and he was issued with a Grant of Letters of Administration Ad Litem on the 11th of November 2024 for the sole purpose of proceeding with prosecution of this suit on behalf of the estate of the deceased 37th Applicant. 5. He contends that Alice Waithira Mwangi and Wilson Gachau Maina seek to be substituted in place of the deceased persons so that they could continue prosecuting the case on behalf of the respective estates. It is his position that the Respondent is in possession of documents of ownership of the suit property being: (i) sale agreement between the Respondent and Christopher Kang'ethe Kigwi T/A Kigwi Limited in respect to the sale of Land Parcels LR Numbers 10823/5/43, 10823/5/48, 10823/388, 10823/389, and 10823/03/89 and (ii) copies of title deeds to land parcels LR Numbers 10823/5/43, 10823/5/48, 10823/388, 10823/389, and 10823/03/89, which are essential for the Applicants to obtain ownership instruments to the subject properties. He faults the Respondent for refusing to hand over the documents to them or produce them before the court. 6. The 1st Applicant depones that it is in the interest of justice that they be allowed to amend the Originating Summons and that the Respondent be compelled to produce the aforementioned documents because they cannot obtain the same. It is the 1st Applicant’s position that they have been in occupation and use of the subject land parcels having purchased the same from the Respondent without any existing competing interests to their knowledge. 7. In his Further Adavit dated 14th May 2025, the 1st Applicant states that upon ling the present application, they held a meeting with the Respondent on 20th February 2024 in an attempt to amicably settle the suit. He further states that during the meeting, they discussed the possibility of withdrawing the suit and collaborating with the Respondent to sue one Christopher Kangethe, whom the Respondent had stated had sold the subject properties to him. 8. The 1st Applicant also states that, during the meeting, the Respondent provided a sale agreement for the subject property between himself and Christopher Kangethe as proof of the sale, along with copies of the mother titles, some in Christopher Kangethe’s name and others in favour of Kigwe Co. Limited while assuring them that Christopher Kangethe was a director of the said company. Additionally, the 1st Applicant states that they were shown a cadastral map conrming that the land in question was indeed the area they occupied. However, the Respondent allegedly declined to allow them to take photographs or scan the said documents. 9. The 1st Applicant further asserts that they were surprised to learn, through the Respondent’s replying adavit, that he now claimed they were total strangers to him, which prompted them to seek to amend the claim to reect the new information now in their possession. 10. The Respondent opposes the Application through his Replying Adavit sworn on 10th of March 2025. It is his position that the suit, as originally led, is invalid and amounts to a fraud, if not a farce, on its face. The Respondent asserts that there is nothing to substitute, as no valid suit had been led https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18676/eng@2025-07-24 2

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by the deceased persons against him, given that the alleged plaintis had already died in 2022, prior to the institution of the suit in 2023. He further maintains that substitution of a deceased person can only occur within one calendar year of their death and not thereafter. He therefore urges the court to dismiss the application. 11. The Application was canvassed by way of written submissions. The Applicants led Written Submissions dated 23rd May 2025, while there are no submissions on record for the Respondent. 12. In the Applicants’ submissions, they stated that prayer 2 in this application seeking an order to substitute the 29th and 37th Applicants with Alice Waithira Mwangi and Wilson Gachau Maina had been abandoned. Counsel for the Applicants identied two issues for determination: (i) Whether or not the defect on record is curable through amendment of pleadings by erasing the names of the 29th and 37th Applicants; and (ii) Whether or not the Applicants ought to be allowed to amend their originating summons. 13. Counsel for the Applicants contended that they sought to cure the defects in the record by withdrawal of the suit by the 29th and 37th Applicants. It was submitted that the eect of the withdrawal was that the authority to sue on their behalf ceased to have legal eect. 14. The Applicants’ counsel further contended that the defect in the pleadings was not indicative of fraud or dishonesty as evidenced by the Grants of Letters of Administration Ad Litem issued to Alice Waithira Mwangi and Wilson Gachau Maina, annexed to the application. Counsel added that the said Grants demonstrated that the application was brought in good faith. 15. Counsel argued that the issue before the court is purely procedural rather than substantive, as it did not aect the core of the remaining suit. Counsel urged the court to apply the “oxygen principles” under Article 159(1)(d) of the Constitution and sections 1A and 1B of the Civil Procedure Act, which promote substantive justice and discourage undue reliance on procedural technicalities. Counsel argued that striking out the suit application only for it to be led afresh would result in delay in the hearing of the matter, increased litigation costs, and uneconomical use of judicial time. 16. Counsel submitted that the Respondent had not met the threshold under Order 2 Rule 15 of the Civil Procedure Rules, which set out grounds for striking out pleadings, namely: failure to disclose a reasonable cause of action, scandalous, frivolous or vexatious content, likelihood of prejudicing, embarrassing or delaying fair trial, or abuse of court process. None of these grounds, it was argued, had been pleaded or proved by the Respondent. Counsel relied on the Court of Appeal decision in Luke Cheruiyot & 37 Others v National Oil Corporation of Kenya [2015] eKLR, which addressed defective adavits. The court, while citing Flystar Limited v The Delphis Bank Limited [Civil Appeal No.58 of 2006] and Microsoft Corporation v Mitsumi Computer Garage Ltd, held that procedural rules exist to serve justice and should not be used to defeat substantive claims based on technical lapses. The Court emphasized that defects that do not go to jurisdiction or substantially prejudice the other party should not render a suit invalid. Counsel also relied on the decision in D.T. Dobie & Company (K) Ltd. v Muchina [1982]KLR to buttress his submissions. 17. On whether the Applicant should be granted leave to amend the originating summons, counsel relied on Order 8 Rules 3 and 4 of the Civil Procedure Rules, which empower the court to permit amendments at any stage of proceedings. Counsel emphasized that Order 8 Rule 4 stated clearly that originating summons qualify as pleadings and are therefore amenable to amendment. It was submitted that the proposed amendment is necessary to reect new facts that only came to the Applicants’ attention after the suit was led, specically regarding the Respondent’s ownership of suit property. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18676/eng@2025-07-24 3

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18. Citing Order 8 Rule 3(5), counsel noted that even where the amendment introduced a new cause of action, the court may permit it provided it arises from the same set of facts already pleaded. In conclusion, counsel urged the court to allow Prayer 3 of this application. 19. Having considered the application, the adavits led by the parties and the submissions led by the Applicants, the two main issues for determination are: 20. (i) Whether or not the defect on record is curable through amendment of pleadings by erasing the names of the 29th and 37th Applicants; and (ii) Whether or not the Applicants ought to be allowed to amend their originating summons. The general power to amend pleadings draws from section 100 of the Civil Procedure Act. Parties to a suit have a right to amend their pleadings at any stage of the proceedings albeit that right is not absolute, for it is dependent upon the discretion of the court. However, this discretion should be exercised judiciously and in line with the criteria set out under order 8 rule 3 of the Civil Procedure Rules which stipulates: “ Subject to order 1, rules 9 and 10, order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings” 21. Further order 8, rule 5 gives the court the general power to amend or to allow amendment and provides: “ For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either on its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.” 22. The Court of Appeal outlined the principles in amendment of pleadings in the case of Central Kenya Limited v Trust Bank Limited & 5 Others [2002] eKLR whilst referring to commentaries on the Indian Civil procedure Code by Chittaley and Rao as follows: “ That a party is allowed to make such amendments as may be necessary for determining the real question controversy or to avoid a multiplicity of suits provided that there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is aected and that the amendment can be allowed without injustice to the other side.” Whether or not the defect on record is curable through amendment of pleadings by erasing the names of the 29th and 37th Applicants 23. The 1st Applicant has admitted that the 29th and 37th Plaintis died prior to the institution of the suit in 2023, yet they were erroneously included as parties. Substitution under Order 24 Rule 3(2) of the Civil Procedure Rules is only available where the deceased was a party to the suit at the time of their death. Since the 29th and 37th Applicants died before the suit was instituted, no valid cause of action ever arose in their names, and substitution in the strict sense is legally impermissible. 24. However, the proposed amendment does not seek to substitute them anymore (as Prayer 2 was abandoned), but rather to withdraw or delete their names from the record. This court nds that this is a curable defect through amendment, provided it does not aect the substratum of the case. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18676/eng@2025-07-24 4

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Whether or not the Applicants ought to be allowed to amend their Originating Summons. 25. The Applicants have sought to amend the Originating Summons to include new facts which the 1st Applicant has contended came to their attention after engaging with the Respondent, such as: (i) the Respondent’s sale agreement with a third party known as Christopher Kangethe; and (ii) the existence of title documents and a cadastral map. The proposed amendment therefore serves the interests of justice, as it will ensure the pleadings accurately reect the actual facts of the dispute. Courts have consistently held that amendments should be freely granted unless they iintroduce an entirely new and inconsistent cause of action, are intended to prejudice the opposing party, or are brought too late such that they delay proceedings unnecessarily. 26. In this case, the applicants acted within reasonable time upon discovering new material facts, and a perusal of the draft amended Originating Summons shows that the said amendments are not prejudicial to the Respondent. 27. Consequently, prayer (3) of the application dated 5th March 2025 is allowed in the following terms: a. The Applicants are granted leave to amend the Originating Summons. b. The names of the 29th and 37th applicants are hereby removed from the suit. c. The Amended Originating Summons shall be led with 14 days. d. The costs of the application shall be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 24TH DAY OF JULY 2025. .............................. J.M ONYANGO JUDGE In the presence of : Miss Muiruri for the Applicants Mr. Kahuthu for the Respondent Court Assistant: Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18676/eng@2025-07-24 5

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