https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3208

Arodi & another (Ssuing through their Attorney Nicodemus Atito Arodi) v Estate of the Late Washington Jakoyo Midiwo (Suing through the administrator Beatrice A Muganda & Samson O Midiwo) (Environment and Land Case 22 of 2023) [2026] KEELC 3208 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3208 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Case 22 of 2023 E Asati, J May 21, 2026 (FORMERLY BUSIA ELC NO. 43 OF 2020) AND (FORMERLY KISUMU LAND CASE NO. 1 OF 2019) Between Jeremiah Arnold Opande Arodi 1st Plaintiff Ida Nereah Adhiambo Arodi 2nd Plaintiff Ssuing through their Attorney Nicodemus Atito Arodi and The Estate of the Late Washington Jakoyo Midiwo (Suing through the administrator Beatrice A Muganda & Samson O Midiwo) Defendant Ruling 1.This ruling is in respect of the Notice of Motion application dated 9th October, 2025 brought by the 1st Third Party pursuant to the provisions of Order 4 Rules 1 and 4 of the Civil Procedure Rules as read with Order 7 Rules 3, 8, 9, 12 Order 1 Rule 15 and 22 of the Civil Procedure Rules and Section 1A and 1B of the Civil Procedure Act Chapter 21 Laws of Kenya. 2.The application seeks orders that;a.The amended statement of Defence and Counterclaim dated 26th May, 2025, be struck out and expunged from the court record with costs.b.The costs of the application be borne by the Defendant. 3.The grounds upon which the application was brought are that the Defendant, Washington Jakoyo Midiwo had been proved to have died and an order for revival of the suit and substitution granted in favour of the Joint Administrators of his estate vide the Ruling delivered on 30th January, 2025 and the orders of the court dated 17th March, 2025 which granted leave to the joint Administrators to file an appropriate amended statement of defence and counterclaim to reflect that specified development of substitution of the deceased defendant. 4.That pursuant to the leave granted, the Administrators have filed and served the amended statement of Defence and Counterclaim dated 26th May, 2025, which does not comply with the orders having gone beyond the scope of the leave granted, and hence contravening the law, particularly, Order 4 Rule 1 of the Civil Procedure Rules as read with order 7 Rule 3, 8, 9 and 12 thereof. 5.That the amendment has radically and unlawfully purported to alter the cause of action against the Third Parties from being one of a claim by the Defendant against the Third Parties as contemplated under Order 1 of the Civil Procedure Rules, to one as if the Third Parties are parties to the original suit, as a suit by way of counterclaim. 6.The application was opposed vide the averments in the Replying Affidavit sworn jointly by Beatrice A. Muganda and Samson O. Midiwo on 1st December, 2025. They deposed that the court allowed them as Administrators of the estate of the deceased to file an amended statement of defence and counterclaim to reflect the substitution vide the court’s ruling dated 30th January, 2025. 7.That the amendments were necessary to enable the court to decide based on real issues between the parties. 8.That the Applicant has filed a Reply to the amended statement of Defence and Counterclaim. 9.They urged the court to admit the amended Defence and Counterclaim and hear the case on merit 10.I have considered the application and the oral submissions made by Counsel. 11.The court record speaks for itself in respect of the contested amendment. The record shows that on 30th January, 2025, the court delivered a ruling with the following orders;“1.The orders issued by this court on 6th June, 2024, dismissing the application dated 1st March, 2024, are hereby reviewed and set aside.2.The Third Party proceedings (suit) instituted by the deceased herein are hereby revived.3.Time for substitution of the deceased is hereby extended.4.The deceased be and is hereby substituted by his personal representative, namely, Beatrice A. Muganda and Samson O. Midiwo.5.Throw away costs of Kshs. 40,000/- to the 1st Third Party to be borne by the estate of the deceased.” 12.Nothing in these orders allowed amendment to any pleadings. Contrary to the averment in the Replying Affidavit that the court vide the ruling dated 30th January, 2025, allowed the representatives of the deceased to file an amended defence and counterclaim. 13.The court record further shows that on the date of delivery of the ruling, the court granted parties leave to amend their pleadings to reflect the substitution. The substitution was the replacement of the name of the deceased with the names of the personal representatives who had been allowed to replace (substitute) the deceased. 14.I find no order on record allowing the Respondents to file an amended defence and counterclaim. 15.The submission on behalf of the 1st Third Party that the proceedings between it and the deceased are Third Party proceedings is supported by the record. Third-party proceedings are governed by the provisions of Order 1, Rules 15, 16 – 23 of the Civil Procedure Rules. 16.I find that the amended Defence and Counterclaim introduced by the personal representatives of the estate of the deceased herein is irregularly filed without leave of the court and that the same contravenes the law. 17.The amended defence and counterclaim is hereby struck out and expunged from the record. 18.Costs to the 1st Third Party/applicant. 19.Orders accordingly. RULING DATED AND SIGNED AT KISUMU, READ THIS 21ST DAY OF MAY, 2026, VIRTUALLY, THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATI,JUDGE.In the presence ofAtika: Court AssistantRagot for the Third Party/ApplicantMwandane h/b for Guserwa for the Respondents.Ligami for the 2nd Interested Party.