https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3667

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CIVIL SUIT NO 226 OF 2018** **BEATRICE WANZA MUTEI & JAMES MUTUA MUTEI** ***(suing as administrators of the*** ***estate of Joseph Mutei Mutua)*……………………........................PLAINTIFF** **VS** **BENSON KYALO MUTULA *(sued as the administrator*** ***of the estate of Serah Munee Mutua)*………………………….1ST DEFENDANТ** **DOROTHY KAVINI MWANGANGI *(sued as the*** ***administratrix of the Estate Mwangangi Mutula)*…………..2ND DEFENDANT** **MOSICA PROPERTIES LIMITED……………………………..3RD DEFENDANT** **MITABONI KATANI COMPANY LTD………………………4TH DEFENDANT** **CHARLES MWANGI MUCHIRI, JOHN MAKUSI SIMIYU &** **ALEX ISOE MOSETI *(sued as Trustees of*** ***P & T Employees Housing Cooperative Society Ltd)*…….5TH DEFENDANT** **LAND REGISTRAR, MACHAKOS LAND REGISTRY………6TH DEFENDANT** **RULING** 1. The substance of this ruling concerns the plaintiff’s unopposed application dated 6 January 2026, which is stated to have been filed in accordance with **Article 48** and **159(2)(d)** of the **Constitution of Kenya,** **Sections 1A, 1B** and**3A,** of the **Civil Procedure Act Cap 21, Order 8 Rule 3** of the **Civil Procedure Rules, 2010,** and all other enabling provisions of law. The plaintiff seeks the following orders from this court: - 2. ***Spent.*** 3. ***Spent.*** 4. ***Spent.*** 5. ***Spent.*** 6. ***That this suit be and is hereby consolidated with;*** ***(i) Spent; and*** ***(ii) ELCLC/E031/2024 Irene Nthenya Nduva (suing as the administrator of the estate of Serah Munee Mutua) vs Charles Mwangi Muchiri, John Mukusi Simiyu and Alex Isoe Moseti (Sued as Trustees of P & T Employees Housing Co-Operative Society Ltd & Others).*** 1. ***This suit be designated as the lead file.*** 2. ***The plaintiff be allowed to amend the further amended plaint to add the new administrators of the estate of Serah Munee Mutua.*** 3. ***Costs of this application be in the cause.*** 1. The application was premised on the grounds set out on the face thereof and on the supporting affidavit of Beatrice Wanza Mutei, sworn on 26 January 2026, and concisely, she informs the court that the deceased plaintiff has filed this suit to recover properties he claims were illegally and fraudulently sold to the 3rd and 5th defendant. She alleges that the 3rd and 5th defendants did not obtain valid titles to **Mavoko Town Block 2/128** and **2/63 (the suit properties),** which she asserts belong to the deceased plaintiff. Additionally, she avers that she discovered two other ongoing cases **(****ELCC/76/2019** *[significantly, this court has struck it out for being an abuse of court process]* and **ELCLC/E031/2024)** involving the same properties. Both cases seek to recover the suit properties and are scheduled for upcoming court proceedings. She states there is a risk of conflicting decisions and stresses that consolidating all related cases would promote efficient and just resolution, as required by the **Civil Procedure Act.** 2. Accordingly, in accordance with the court's directions, the law firm of **Ms.** **Githumbi Gachaga & Achoki** for the deceased plaintiff filed written submissions dated 8 May 2026, whereas the other parties did not file any submissions. Accordingly, having given careful thought to the motion, its grounds, the affidavit and annexures, the court records and submissions, the legal framework and prevailing jurisprudence, the issues for determination are ***(a)*** ***whether the plaintiff should be granted leave to amend the plaint*** and **(*b) whether ELCLC/E031/2024 is sub judice and an abuse of court process, and, if not, whether an order for consolidation should be made*.** We now deal with these issues in a sequential manner. 3. **Whether the plaintiff should be granted leave to amend the plaint** 4. Regarding the legal framework on amendment of pleadings and as submitted by the plaintiff, **Order 8, Rules 3** and **5** allow this court to permit parties to amend their pleadings, as the object of such amendments is to enable the parties to present their case so that the real question in controversy can be determined. These provisions state: - ***Order 8, Rule 3*** ***“(1)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.*** ***(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 the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be 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 the party applying for leave to make the amendment.”*** ***Order 8, Rule 5*** ***“(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.”*** 1. It is evident from a reading of the above provisions of law that while the court is usually lenient regarding amendments at any time before it renders a judgment, it may refuse certain types of amendments. In considering such applications, the court exercises its discretion to do justice in the case, and it must be exercised judiciously, not whimsically. In **considering Bullen and Leake & Jacob's Precedents of Pleading, 12th Edition,** **A.B. SHAH (JA),** theCourt of Appeal decision in **Joseph Ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago [1995] KECA 31 (KLR)**, established the following guiding criteria on amendments of pleadings:- ***“that powers of the court to allow amendment is to determine the true, substantive merits of the case; amendments should be timeously applied for; power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages) 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; that exact nature of proposed amendment sought ought to be formulated and be submitted to the other side and the court; that adjournment should be given to the other side if necessary if an amendment is to be allowed; that if the court is not satisfied as to the truth and substantiality of the proposed amendment it ought to be disallowed; that the proposed amendment must not be immaterial or useless or merely technical; that where the plaintiff's claim as originally framed is unsupportab1e an amendment which would leave the claim equally unsupportable will not be allowed ; 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; 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 but subject however to powers of court to still allow such an amendment notwithstanding the expiry of current period of Limitation: that the court has powers even (in special circumstances) to allow an amendment adding or substituting a new cause of action if the same 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 action by the party applying for leave to seek the amendment..”*** 1. The question of amending pleadings is not new and has been addressed in many court rulings, including **Kyungu (Suing on behalf of Danie Kyungu Muasya) v Kivuva & another [2022] KEELC 14971 (KLR), Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited (2013) KECA 354 (KLR),** and **Joseph Ochieng & 2 others Trading as Acquiline Agencies v First National Bank of Chicago (1995) KECA 31 (KLR).** From these court decisions, it emerges that the decision to grant or deny leave to a party to amend pleadings is at the court's discretion, based on law, evidence, and reason. 2. Typically, the court permits amendments deemed necessary to ascertain the real issues in dispute or to prevent the proliferation of lawsuits, provided there has been no undue delay, no new or conflicting cause of action is introduced, and no vested interest or accrued legal right is compromised. Moreover, the amendment may be granted without causing injustice to the opposing party. The general rule is that courts typically permit amendments at any stage of proceedings, provided they do not cause injustice or prejudice to the opposing party. If there is prejudice, it can often be offset by an award of costs. 3. The purpose of amending pleadings is to allow the parties to modify their pleadings so that litigation proceeds based on the actual facts and the intended relief, rather than on inaccurate assertions or claims. The authority to amend enhances the court's ability to focus on the case's substantive merits rather than being constrained by procedural formalities. 4. In this matter, the deceased plaintiff contends that it is necessary to join the current administrators of the estate of Serah Munee in this matter and has presented a grant of letters of administration showing that Irene Nthenya Nduva is the administrator of her estate. Therefore, and to adjudicate the matter between the proper parties and/or administrators of the deceased Serah Munee, this court finds no difficulty in finding that this relief is merited. 5. Nevertheless, this court is aware that in other matters involving some of the parties herein, Joyce Muthoki, Margaret Mwongeli Mutinda and Irene Nthenya Nduva have acted as administrators of the estate of the deceased Serah Munee **(see ELCC/76/2019** and **ELC CIVIL SUIT NO. 1B OF 2020),** whereas in **ELCLC/E031/2024**, Irene Nthenya Nduva has acted as the administrator of Serah Munee. Consequently, it would be prudent for the plaintiff to make the relevant application to peruse **Machakos HCSC 368 of 2008** and establish who the proper administrators of Serah Munee are, so that the proper parties are intituled to these proceedings. The same should suffice for the estate of Mwangangi Mutula. 6. **Whether the present suit is *sub judice* and an abuse of court process** 7. The legal framework on the doctrine of *sub judice* is found in our **Section 6** of the **Civil Procedure Act,** in the following terms: - ***“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.*** ***Explanation.—The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court..”*** 1. In illuminating the import of this doctrine and in finding that *sub judice* arose, the Supreme Court in **Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR)** stated thus: ***“The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”*** 1. In considering the overriding objective of the court under **Section 1A** of the **Civil Procedure Act** and the purpose of the doctrine, the Court of Appeal in the recent decision of **Muchiri v Board of Management of Kenya Hospital Association & 2 others [2025] KECA 2315 (KLR)**, stated as follows: - ***“In our view, the filing of multiplicity of suits by parties or their representatives on the same or substantially the same subject matter violates the overriding objective since it goes contrary to the duty to efficiently dispose of the business of the court. By engaging the courts in different suit where the issues may be disposed of in one suit, the sub judice rule ensures that the available judicial and administrative resources are efficiently used. It is invoked in the interest of the parties because the parties are kept at a minimum both in terms of time and money spent on a matter that could be resolved in one suit. A multiplicity of suits clogs the wheels of justice, holding up resources that would be available to fresh matters, and creating and or adding to the backlog of cases courts have to deal with. They should therefore be avoided once the court’s attention is brought to the fact of existing suits or proceedings.”*** 1. Notwithstanding setting out the law and settled jurisprudence, and having joined the plaintiff herein in **ELCC/76/2019**, found in **ELCC/76/2019** that the suit therein was an abuse of court process and struck it out with costs instead of consolidating it with this suit, this court finds that, in the unique circumstances herein, entertaining this second issue would be appropriate in the substantive file of **ELCLC/E031/2024,** as there is a high likelihood that **ELCLC/E031/2024** is an abuse of court process. As for **ELC CIVIL SUIT NO. 1B OF 2020,** which is coming up for hearing on 7 July 2026**,** it is clear that the deceased plaintiff is not privy to this matter, which may also be a candidate for striking out. 2. In the end, the court finds the application dated 6 January 2026 merited. Costs shall be in the cause. The court hereby issues the following final orders: 3. ***The plaintiff shall, within 21 days of the date hereof, file and serve an amended plaint.*** 4. ***Thereafter, the defendants shall be at liberty to file their amendments within 21 days of service.*** 5. ***Liberty applies to the plaintiff herein in respect of*** ***ELCLC/E031/2024 and ELC CIVIL SUIT NO. 1B OF 2020.*** 6. ***Costs shall be in the cause.*** 7. ***A mention date shall be issued alongside ELCLC/E031/2024.*** It is so ordered. **Delivered and Dated at Machakos this 16th day of June, 2026.** **HON. A. Y. KOROSS** **JUDGE** **16.06.2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform** In the presence of; Ms. Kanja Court Assistant. Mr. Githumbi for the plaintiff. No appearance for other parties.