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

administrator of the estate of the late Stephen Gitara Mbaru who is the registered owner of LR no. 209/14479 grant IR. No. 89160. She deposed that sometime in 2024, she learnt of illegal occupation on the suit property by the defendant/respondent who was in charge of the development. That upon conducting further investigations, she confirmed that the proposed defendant/respondent is in illegal occupation of the suit property and developing the same thus the need to amend the plaint and include the defendant as Lalji Hiran Lalhu and not Lalji Hirani. 3. In response thereto, the defendant/respondent filed his replying afidavit sworn on 26th January, 2026. He deposed that the plaintifi/applicant failed to demonstrate any bona fide mistake warranting the substitution and further failed to explain the ordinate delay in filing the instant application. The defendant/respondent deposed that the investigation’s report does not disclose any ongoing trespass, thus the application is an afterthought brought after the filing of his statement of defence. He deposed that he incurred legal costs and emotional distress as well as reputational damage which the plaintifi/ applicant should not be allowed to escape the consequences. 4. The defendant/respondent filed grounds of opposition dated 27th February, 2026 challenging the instant suit. The same contains grounds similar to those contained in the replying afidavit, and there would be no need to reproduce the same save to note its contents. 5. The application was canvassed through written submissions. The plaintifi/applicant filed written submissions dated 30th April, 2026 while the defendant/respondent filed written submissions dated 12th June, 2026. The proposed defendant did not file his response to the instant application. Be that as it may, I have considered the application, the replying afidavit thereof and the written submissions filed by both parties. The issue for determination is whether the application has merit. 6. The law on who may be joined as a defendant is found under Order 1 Rule 3 of the Civil Procedure Rules which provides as follows:“ All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against such persons any common question of law or fact would arise.” 7. Further, Order 1 rule 10(2) of the Civil Procedure Rules provides as follows:“ The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintifi or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintifi or defendant, or whose presence before the court may be necessary in order to enable the court efiectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 8. In, Civicon Limited versus Kivuwatt Limited and 2 Others [2015] eKLR the court observed as follows:“ Again the power given under the rules is discretionary which discretion must be exercised judicially. The objective of these rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably afiected by the pending litigation is a necessary and proper party, and should be enjoined…from the foregoing, it may be concluded that being https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4243/eng@2026-07-09 2

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a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be sufiered by the party and the practicability of the execution of the order sought in the suit, in the event that the plaintifi should succeed. We may add that all that a party needs to do is to demonstrate suficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.” 9. From the above provisions of the law and the authority, joinder of a party is permitted by law and it can be done at any stage of the proceedings. However, joinder of a party may be refused where such joinder: will lead into practical problems of handling the existing cause of action together with the one of the party being joined; is unnecessary; or will just occasion unnecessary delay or costs on the parties in the suit. In other words, joinder of parties will be declined where the cause of action being proposed or the relief sought is incompatible to or totally difierent from existing cause of action or the relief. The determining factor in joinder of parties is that a common question of fact or law would arise between the existing and the intended parties. 10. The plaintifi/applicant filed this suit in 2024 and upon conducting further investigations, realized that she had sued the wrong party. For this reason, she seeks to have the defendant/respondent removed as a party in this suit, and instead, the proposed defendant be joined as a defendant. In response thereto, the defendant/respondent contended that he has incurred legal costs as well as reputational damage which should be accounted for. I further note that the defendant/respondent commented on the contents of the investigations report which according to him, does not disclose any acts of trespass. On this, the court will refrain from commenting any further and give chance to proper ventilation of the same during the hearing. 11. Let me say that it is the right of the plaintifi to sue a party who he or she claims or believes an alleged wrong was committed or exists and which act was done by the defendant. In this case, the plaintifi/ applicant believes that the alleged wrongs committed were done by the proposed defendant, and she has no claim against the defendant/respondent. In my view, allowing the joinder of the proposed defendant will have no prejudice on the defendant/respondent. While he alleges to have incurred legal costs, the same can be compensated. 12. From the above, I find merit in the notice of motion dated 26th November 2025 and it is allowed as follows: i. Leave is hereby granted to join Lalji Hiran Lalhu as a defendant in this suit. ii. Leave is hereby granted to the plaintifi/applicant to amend the plaint to include Lalji Hiran Lalhu as a defendant in this suit. This should be done within 3 days from the date hereof. Thereafter, and within 14 days, the plaintifi/applicant to ensure service of the pleadings upon the defendant. iii. Lalji Hirani is hereby struck out as a party from this suit. He is also awarded the costs of this application. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 9TH DAY OF JULY, 2026. HON. MBOGO C.G. JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4243/eng@2026-07-09 3

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09/07/2026. In the presence of: Ms. Benson Agunga - Court assistant Mr. Ondijo holding brief for Ms. Fatuma for the Defendant/Respondent No appearance for the Plaintifi/Applicant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4243/eng@2026-07-09 4

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