Michael Mbithi Mukolya & 4 others v Bonface Mulwa & 3 others

Michael alias Muithya Kithu – Deceased) ................................................... 4TH PLAINTIFF JOSEPH MBITHI NZWILI (Suing as the legal representative of the estate of Nzwili Nthenge Kithu – Deceased).............................................................................. 5TH PLAINTIFF VERSUS BONFACE MULWA ........................................................... 1ST DEFENDANT HENRY MULWA ............................................................. 2ND DEFENDANT NATIONAL LAND COMMISSION .................................... 3RD DEFENDANT CHIEF LAND REGISTRAR ................................................. 4TH DEFENDANT RULING Introduction 1. A Plaintiff can choose who to sue; however, it is essential that they clearly state the capacity in which the defendant is ELCLEPCC E006 OF 2026 RULING 2

page 2 of 25

being sued. This is so because the defendant may hold different positions at different times, carry out different duties, and as a result have different causes of action apply to them. Precision in this matter is therefore by no means a trivial matter. The present case is an example of this. 2. Before the Court is the Plaintiffs’ Notice of Motion dated 17th April 2026, brought under Order 8 Rules 3 and 5, Order 51 Rules 1, 3, 4 and 10(2) of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act. The Plaintiffs seek the following orders: a) THAT this Honourable Court be pleased to grant the Plaintiffs/Applicants leave to amend their Amended Plaint dated 9th April 2025. b) THAT this Honourable Court be pleased to deem the annexed amended Plaint as duly filed and served upon payment of the requisite fees. c) THAT costs of this Application be in the cause. ELCLEPCC E006 OF 2026 RULING 3

page 3 of 25

3. The Application is supported by the Affidavit of Raphael Kaloki, the 2nd Plaintiff, sworn on 17th April 2026. The Applicants' case is that the 1st and 2nd Defendants are the sons and beneficiaries of the Estate of Mulwa Mukutha (Deceased), who was fraudulently and/or illegally registered as a co-owner of the suit properties. Owing to a genuine oversight, the Plaintiffs did not sue the 1 st and 2nd Defendants in their proper capacities as administrators of the Estate. The Plaintiffs have now obtained a Limited Grant of Letters of Administration Ad Litem dated 13 th April 2026, which authorises the 1st and 2nd Defendants to be sued as legal representatives of the Estate. 4. The Applicants aver that the amendment is necessary to enable the Court to determine the real questions in controversy, that it introduces no new cause of action, and that the Defendants will suffer no prejudice as they will have an opportunity to file their defence to the Further Amended Plaint. ELCLEPCC E006 OF 2026 RULING 4

page 4 of 25

The Respondents’ Case 5. The Application is opposed through Grounds of Opposition dated 8th June 2026. The 1st and 2nd Defendants contend that in law, one cannot amend an incompetent suit to cure a fundamental legal capacity or standing at the time the law suit was filed. The original filing is void and incurable. The entire suit should be dismissed and/or struck out for lack of jurisdiction to allow a restorative amendment to substitute a new competent Defendant. A fundamentally defective or incompetent Plaint cannot be amended. The original filing is incurably void. 6. The Defendants pray that the entire suit as against them be struck out with costs. Submissions 7. The Court directed that the Application be canvassed by way of written submissions. Both parties complied. ELCLEPCC E006 OF 2026 RULING 5

page 5 of 25

The Plaintiffs’ Submissions 8. The Plaintiffs filed written submissions dated 27th July 2026. They identified two issues for determination, namely whether the Application for amendment ought to be allowed and whether the entire suit ought to be struck out. 9. Learned counsel for the Plaintiffs submitted that the Application is brought under Order 8 Rule 3 of the Civil Procedure Rules, which allows the Court to amend pleadings at any stage of the proceedings. Counsel relied specifically on Order 8 Rule 3(4), which provides for amendment to alter the capacity in which a party sues, and submitted that the 1st and 2nd Defendants could have been sued as legal representatives of the Estate of Mulwa Mukutha at the date of filing the plaint, since they were the sons and beneficiaries of the deceased and could have applied for grant ad litem. 10. Counsel further submitted that the amendment introduces no new cause of action, does not alter the ELCLEPCC E006 OF 2026 RULING 6

page 6 of 25

substance of the claim or the reliefs sought, and merely describes the 1st and 2nd Defendants in the representative capacities in which they ought properly to be sued. The Defendants will suffer no prejudice as they will have an opportunity to file their defence to the Further Amended Plaint. Any prejudice can be compensated by costs. 11. Counsel relied on the principles in Harrison C. Kamau v Blue Shield Insurance Co. Ltd (2006) eKLR, Arasa v Tailor & 5 others [2022] KEELC 2712 (KLR), and Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000] eKLR, to the effect that amendments should be freely allowed if they do not occasion injustice to the other side which cannot be compensated by costs. Counsel also relied on Mombasa Cement Ltd v Speaker of the National Assembly & 2 others, Petition No. 177 of 2015, for the proposition that delay alone is not necessarily a reason to refuse an amendment. The 1st and 2nd Defendants’ Submissions ELCLEPCC E006 OF 2026 RULING 7

page 7 of 25

12. The 1st and 2nd Defendants filed written submissions dated 31st July 2026 opposing the Application. 13. Learned counsel for the 1st and 2nd Defendants, Mr. J.M. Tamata, submitted that the Application is made seven (7) years after the suit was filed in 2019, and after the Plaintiff has sought and been allowed to amend the pleadings several times. The suit relates to a decision of a tribunal that was made in 1997, twenty-nine (29) years ago. 14. Counsel submitted that the Plaintiff seeks to amend the capacity of parties herein, and the Defendants were wrongly sued in their personal capacities. Pretrial conference was conducted, matters certified for hearing by consent, and even after that, the Plaintiff has amended the plaint twice. The delay is inordinate, an abuse of court process, and prejudicial to the Defendants. 15. Counsel further submitted that the initial suit was a legal nullity. It was filed against non-existent legal persons. ELCLEPCC E006 OF 2026 RULING 8

page 8 of 25

The Plaintiff has admitted and acknowledged that the 1st and 2nd Plaintiffs had no legal capacity to be sued in 2019 as administrators of the estate of their deceased father. The Plaintiff only obtained the limited grant in March 2026, seven years later. The proper cause or legal step is for the Honourable Court to strike out the nullity, and the Plaintiff has an option of filing a proper new suit. Issue for determination 16. Having carefully considered the application, the affidavits in support and in opposition, parties’ submissions, the authorities cited and the entire record of proceedings, the sole issue for determination is whether the Court should exercise its discretion to permit the Plaintiffs to amend the Plaint so that the 1st and 2nd Defendants, who were sued in their personal capacities, are described and sued in their representative capacity as the legal representatives of the Estate of Mulwa Mukutha (Deceased). Analysis and determination ELCLEPCC E006 OF 2026 RULING 9

page 9 of 25

17. The application before the Court is for leave to amend the Amended Plaint dated 9th April 2025. The power to allow an amendment of pleadings is conferred by Order 8 rule 3(1) of the Civil Procedure Rules, which provides that the Court may, at any stage of the proceedings, on such terms as to costs or otherwise as may be just, allow any party to amend his pleadings. 18. The power is complemented by the general provision in Order 8 Rule 5, which permits the Court, for the purpose of determining the real question in controversy between the parties or correcting any defect or error in the proceedings, to order the amendment of any document in such manner as it may direct. The two provisions are therefore material to the Court’s consideration of the present application. 19. Order 8 Rule 3 provides: “3. Amendment of pleading with leave (1) Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following ELCLEPCC E006 OF 2026 RULING 10

page 10 of 25

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. (2) Where an application to the Court for leave to make an amendment such as is mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the Court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just so to do. (3) An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of substitute the a amendment new party if will the be to Court is satisfied that the mistake sought to be ELCLEPCC E006 OF 2026 RULING 11

page 11 of 25

corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued. (4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which the party will sue is one in which at the date of filing of the plaint or counterclaim, he could have sued. (5) An amendment may be allowed under subrule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by ELCLEPCC E006 OF 2026 RULING 12

page 12 of 25

the party applying for leave to make the amendment.” 20. Order 8 Rule 5 provides: “5. General power to amend (1) 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 of 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. (2) This rule shall not have effect in relation to a judgment or order.” 21. These provisions confer a broad discretion upon the Court to permit amendment of pleadings at any stage of the proceedings. The discretion is exercised to facilitate determination of the real question in controversy and to correct defects or errors in the proceedings, subject to the requirement that the opposite party is not occasioned ELCLEPCC E006 OF 2026 RULING 13

page 13 of 25

prejudice which cannot adequately be addressed by appropriate terms, including costs. 22. The principles governing the exercise of that discretion were stated by the Court of Appeal in Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] eKLR in the following terms: “The settled rule with regard to amendment of pleadings has been concisely stated in Vol.2, 6th Ed. at P.2245, of the AIR Commentaries on the Indian Civil Procedure Code by Chittaley and Rao, in which the learned authors state: "that a party amendments is allowed to make such as maybe necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right ELCLEPCC E006 OF 2026 RULING 14

page 14 of 25

is affected and that the amendment can be allowed without injustice to the other side.” 23. The Court of Appeal restated the principles in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013] eKLR, drawing from Bullen and Leake & Jacob’s Precedents of Pleadings, 12th Edition, and the Court’s earlier decision in Joseph Ochieng & 2 others v First National Bank of Chicago, Civil Appeal No. 149 of 1991. The Court stated that the power to amend pleadings is exercised on the following principles: a) The power of the court to allow amendments is intended to determine the true substantive merits of the case; b) The amendments should be timeously applied for; c) power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages); ELCLEPCC E006 OF 2026 RULING 15

page 15 of 25

d) that as a general rule, however late, the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side; e) that the proposed amendment must not be immaterial or useless or merely technical; f) that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action; g) that the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on Limitation Acts.” 24. In this case, the Plaintiffs seek to amend the Amended Plaint so that the 1st and 2nd Defendants, who are already parties to the suit in their private capacities, are sued in their ELCLEPCC E006 OF 2026 RULING 16

page 16 of 25

capacities as administrators of the Estate of Mulwa Mukutha, deceased. The deceased is alleged to have been fraudulently and illegally registered as a co-owner of Muthetheni/Kyethivo/207 and to have irregularly acquired an interest in Muthetheni/Kyethivo/209, which properties form the subject of the suit. The amendment is intended to identify the capacity in which the 1 st and 2nd Defendants are to answer to those allegations and to enable the reliefs sought to be directed against them in their capacity as representatives of the estate. 25. The Civil Procedure Rules require that capacity to sue or be sued in a representative capacity be stated in the plaint. Order 4 Rule 4 of the Civil Procedure Rules provides: “Where the plaintiff sues in a representative capacity the plaint shall state the capacity in which he sues and where the defendant is sued in a representative capacity the plaint shall state ELCLEPCC E006 OF 2026 RULING 17

page 17 of 25

the capacity in which he is sued, and in both cases it shall be stated how that capacity arises.” 26. The rule serves a substantive purpose, not a merely procedural one. A party is entitled to know from the pleading the capacity in which another party is before the Court. Where a defendant is sued as a legal representative, the claim is directed representative against capacity. The that defendant pleading must in that therefore disclose the capacity relied upon and the manner in which it arises. Without such disclosure, the Court may lack the necessary context to assess the validity of the claims and to make orders that bind the correct interests. 27. The question, therefore, is whether the Court may permit the Plaintiffs to introduce that amendment at this stage so as to bring the pleading into conformity with Order 4 rule 4. In my view, the answer lies in the nature of the defect and in the fact that the persons whom the Plaintiffs seek to have sued in the representative capacity are already before the Court. ELCLEPCC E006 OF 2026 RULING 18

page 18 of 25

28. The decision in Jeremiah Kamau Gitau & 2 Others v Wandai & 5 Others [1989] KEHC 75 (KLR) is instructive. In the case, the Court considered persons who had been made defendants without being described in the plaint as having been sued in their representative capacities. The Court observed that: “It is clear from this paragraph and from the plaint as a whole that the third, fourth and fifth defendants in the first suit were not sued in their representative capacities.” 29. The Court proceeded to state: “Having noted that the instituted by Jeremiah first Kamau suit was Gitau, not Mary Wanjiku Mungai and Philisila Njeri Mungai and having found that they were not sued in representative capacities as envisaged in the Civil Procedure Rules, I find that the first suit is not a nullity as was submitted. However, I further ELCLEPCC E006 OF 2026 RULING 19

page 19 of 25

find that they were improperly made parties in that suit as they had no property to transfer to the first defendant.” 30. The decision makes clear that failure to plead the representative capacity in which existing defendants are sued does not, on its own, render a suit a nullity. The omission is capable of correction by amendment where the persons intended to answer the claim are already before the Court and the amendment does not occasion prejudice to their right to be heard. 31. That is the position that arises in the present case. The 1 st and 2nd Defendants are already parties to the suit in their individual capacities. The Plaintiffs seek to amend the Amended Plaint so that they are sued as administrators of the Estate of Mulwa Mukutha, deceased. The Plaintiffs are not seeking to bring before the Court different persons from those already named as the 1st and 2nd Defendants. They seek to state in the plaint the capacity in which those ELCLEPCC E006 OF 2026 RULING 20

page 20 of 25

defendants are to answer the claim concerning property alleged to form part of the estate of the deceased. The cause of action remains the same. 32. Order 8 Rule 5(1) empowers the Court, for the purpose of determining the real question in controversy or correcting a defect or error in any proceedings, to order a document to be amended in such manner as it directs and on terms as to costs or otherwise as are just. The Plaint can consequently be brought into conformity with the capacity in which the 1 st and 2nd Defendants are now required to participate in the proceedings. In my view, the amendment is permissible. 33. Having found that the amendment is legally permissible, I turn to the question of delay, which the Defendants have raised as a bar to the Application. The Defendants contend that the suit was instituted in 2019, that the Plaintiffs have amended their pleadings previously, and that the matter has proceeded through pre-trial proceedings. The delay in ELCLEPCC E006 OF 2026 RULING 21

page 21 of 25

bringing this Application is substantial and ought not to be encouraged. 34. However, the Court must consider the delay together with the stage of the proceedings, the nature of the proposed amendment, and the prejudice, if any, that the Defendants are likely to suffer if the amendment is allowed. In the present case, the application was made before the hearing of the suit and before any oral evidence had been taken. If the amendment is allowed, the Defendants will have an opportunity to file their defence to the Further Amended Plaint and to be heard on the merits. There is no indication that the delay has caused the Defendants any prejudice that cannot be compensated by costs. 35. The Court is mindful of the overriding objective under sections 1A and 1B of the Civil Procedure Act, which requires the just, expeditious, proportionate and affordable resolution of civil disputes. The Defendants' concern about the delay is legitimate. However, the delay must be weighed against the ELCLEPCC E006 OF 2026 RULING 22

page 22 of 25

nature of the amendment, which is formal rather than substantive, and the fact that the Defendants will suffer no prejudice that cannot be compensated by costs. In the circumstances, although the delay has not been satisfactorily explained, I find that it does not warrant refusing the Application. 36. In the circumstances, I am satisfied that the proposed amendment is one which the Court is entitled to permit under Order 8. The Plaintiffs have placed before the Court the Limited Grant of Letters of Administration Ad Litem which provides the basis upon which the representative capacity is now pleaded. The Defendants will have the opportunity to answer the amended pleading, and any inconvenience occasioned by the amendment can be addressed through appropriate directions as to pleadings and costs. The amendment will enable the Court to determine the dispute upon the basis of the capacity in which the persons before it are required to answer the claim. ELCLEPCC E006 OF 2026 RULING 23

page 23 of 25

It will also ensure that any orders made in respect of the suit properties are directed at the correct legal interests. 37. Accordingly, the Application dated 17 th April, 2026 allowed and I Order as follows: a) The Plaintiff is granted leave to amend its Plaint dated 9th April, 2025 in terms of the further amended Plaint annexed to the application. b) The Further amended Plaint shall be filed and served within seven (7) days from the date of this ruling upon payment of the requisite court fees. c) The Defendants shall file and serve their response to the Further Amended Plaint, within fourteen (14) days of service. d) The costs of this Application shall be in the cause. ELCLEPCC E006 OF 2026 RULING 24

page 24 of 25

Orders accordingly. Delivered and Dated at Machakos this 1ST day of October, 2026. HON. J. N. KUYIONI JUDGE 01.10.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Court Assistant - Fabious. Mr. Tamata for the 1st and 2nd Defendants. Mr. Kuria for the 4th Defendant. No appearance for other parties. ELCLEPCC E006 OF 2026 RULING 25

page 25 of 25