https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4923

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC CASE NO. 337 OF 2017** **JUSTUS KYALO KEESI .…….....................................................1ST PLAINTIFF** **LILIAN NTHAMBO KEESI …………………………………...2ND PLAINTIFF** **SAMSON KYOMBO KEESI …………………………………...3RD PLAINTIFF** **(Suing as the administrator of the Estate of JONATHAN KEESI NGUNZI – Deceased)** **-VERSUS-** **BENJAMIN MUTUA KEESI …………………………………1ST DEFENDANT** **KINYAMBU KEESI ………………………………………….2ND DEFENDANT** **KYAMA KEESI ……………………………………………….3RD DEFENDANT** **IGNATIUS KINYAMBU ……………………………………..4TH DEFENDANT** **ROSE NGINA …………………………………………………5TH DEFENDANT** **MUSAU MASOKA ……………………………………………6TH DEFENDANT** **MUTUKU SILINGI …………………………………………...7TH DEFENDANT** **PATRICK NZOMO …………………………………………..8TH DEFENDANT** **JOHN KATO ………………………………………………….9TH DEFENDANT** **MBITHE SILINGI …………………………………………..10TH DEFENDANT** **RULING** 1. Before the court for determination is the Notice of Motion dated 22nd October, 2025 filed under the provisions of Article 159(2)(d) of the Constitution, Section 19 of the Environment and Land Court Act, Sections 1A, 1B, 3A and 100 of the Civil Procedure Act as well as Order 1 Rule 10 and Order 8 Rules 3 and 5 of the Civil Procedure Rules. 2. The Plaintiffs/Applicants seek issuance of the following orders: - 3. **THAT leave be granted to the Plaintiffs to further amend the Amended Plaint dated 5th June, 2023 in terms of the draft Further Amended Plaint.** 4. **THAT the Plaintiffs be granted leave to join the proposed 11th to 39th Defendants as Defendants in the suit.** 5. **THAT the Plaintiffs be granted leave to join the Land Registrar Makueni, the proposed 40th Defendant as a Defendant in the suit.** 6. **THAT the Plaintiffs be granted leave to substitute the 3rd Defendant with the Administrators ad litem of his Estate upon the determination of MCSUCCMISC/E090/2025; Justus Kyalo Keesi vs Veronica Musengya Muthiani Kyama.** 7. **THAT the Plaintiffs be granted leave to effect service of summons to enter appearance and notice of collection of the pleadings upon the 11th to 39th Defendants by way of advertisement in a daily newspaper or through the area Chief’s Office in Kilala Location.** 8. **THAT costs of the application be in the cause.** 9. The application is based on the grounds appearing on its face together with the supporting affidavit of Justus Kyalo Keesi sworn on even date. He averred that the Plaintiffs seek to further amend the amended Plaint dated 5th June, 2023 to address the developments on the suit properties between 25th July, 2013 and the present date. He contended that there has been encroachment by new parties and illegal acquisition of the suit properties despite the matter being live before this court. 10. The deponent contended that at the time of his death, Jonathan Keesi Ngunzi, was the legal proprietor of land Parcel Nos. KILALA/KAUMONI/323, KILALA/KAUMONI/365,KILALA/KAUMONI/386,KILALA/KAUMONI/422, PLOT NO. 5 KAUMONI and PLOT NO. 45 KILALA. He further contended that during the pendency of the suit, the Defendants together with the proposed 11th – 39th Defendants without lawful authority trespassed into the suit properties and purported to lay claim on the land on the basis of fraudulently issued titles and invalid sale agreements. 11. It was averred that the amendments sought are necessary to enable the court make a just determination of all the issues in controversy between the parties regarding ownership of the suit properties. That the Land Registrar Makueni is the custodian of land records and a necessary party to the suit hence the requirement for leave to be joined as the 40th Defendant. 12. The Applicants contended that the 3rd Defendant died on 26th October, 2024 and that they had petitioned the probate court vide MAKUENI MCSUCCMISC/E090/2025 for issuance of letters of administration ad litem to the beneficiaries of the estate of the 3rd Defendant for purposes of defending the suit. 13. It was contended that the proposed 11th to 39th Defendants are hostile towards the Plaintiffs and as a result, it would be unsafe for the process server to serve summons upon them physically. That for the said reasons, the orders sought in the application are necessary so as to ensure that the court makes a just determination of the case. That the proposed amendments will not prejudice the Defendants whatsoever. 14. The application was opposed by only the 9th Defendant vide the grounds of opposition dated 5th November, 2025. It was contended that the application is grossly incompetent as no draft amended plaint has been annexed to the application to enable the court and the parties to decipher the nature of the proposed amendments. That the application is an omnibus likely to obfuscate or cause confusion to the parties and the court. 15. In a further affidavit sworn by the 1st Plaintiff on 23rd February, 2026, he confirmed that indeed the draft further amended Plaint had been annexed to the application as Exhibit “JKK-15”. 16. The application was canvassed by way of written submissions. 17. In the Applicants’ submissions dated 23rd February, 2026, Counsel submitted that the overriding consideration in an application for leave to amend pleadings is whether the amendments are necessary for the just determination of controversy between the parties. It was contended that the application had been made without unreasonable delay. That since the previous amendment of 16th June, 2023, the suit had been active with contempt proceedings against the 9th Defendant until sentencing of the 9th Defendant on 24th September, 2025. That upon direction by the court, the Plaintiffs made the present application on 22nd October, 2025. 18. It was submitted that the amendments do not seek to substitute the cause of action in the suit because among the reliefs sought is for a declaration that the suit properties belong to Jonathan Keesi Ngunzi in addition to vacant possession of the land. Counsel contended that the proposed amendments will not prejudice the Defendants who will have an opportunity to amend their defences. Moreover, it was submitted that the Defendants have not filed all their pre-trial documents and so that the matter can be certified ready for hearing. 19. Submitting on why leave to substitute the 3rd Defendant should be granted, Counsel contended that they had moved with speed to file the Petition for letters of administration ad litem upon learning of his demise on 18th September, 2025. 20. On service of summons via substituted service, Counsel contended that physical service on the proposed 11th to 39th Defendants would be risky for the process server as they have been hostile towards the Plaintiffs. It was submitted that the court should exercise its wide discretion under Order 5 Rule 17 of the Civil Procedure Rules to allow service by way of substituted service. Counsel urged the court to allow the application as prayed. 21. In the 9th Defendant’s submissions dated 9th March, 2026, Counsel submitted that the Applicants have introduced about fourteen other prayers which would fundamentally alter and completely substitute the cause of action. Counsel contended that the convoluted number of proposed Defendants will make it difficult if not impossible to properly plead. Counsel pointed out to the potential difficulties in hearing a matter of forty Defendants if each were to appoint their own advocate. 22. Counsel was of the view that the Plaintiffs knew all along since 2014 of the amendments they now wish to make. It was argued that the 9th Defendant will be prejudiced by the long delay in bringing the proposed amendments. That the proposed causes of action being brought against the parties took place at different times and places. It was argued that such a situation presents a nightmare to parties both at filing their defences and at the trial. 23. From a perusal of the application, the grounds of opposition and the rival submissions, the following issues are not in dispute: - 24. The suit properties are comprised of land Parcel Nos. KILALA/KAUMONI/323,KILALA/KAUMONI/365,KILALA/KAUMONI/386,KILALA/KAUMONI/422, PLOT NO. 5 KAUMONI and PLOT NO. 45 KILALA; 25. The cause of action in relation to the above suit properties originates from alleged trespass to land and subsequent fraudulent sale and registration of the suit properties by a handful of the defendants to their co-defendants sometimes between the years 2006 and 2024; 26. The alleged acts of trespass and fraud have persisted in the intervening period from the date of filing of the suit in 2013 up to 2024; and 27. The 3rd Defendant died on or about 26th October, 2024. 28. The apparent issues for determination are as follows: - 29. Whether Plaintiffs should be granted leave to further amend the amended plaint dated 5th June, 2023; 30. Whether joinder of the 11th – 40th Defendants should be allowed; 31. Whether leave to substitute the 3rd Defendant with the Administrators ad litem of his Estate; and 32. Whether leave to effect service to the 11th to 39th proposed Defendants by way of substituted service ought to be granted. 33. The amendment of pleadings is a discretionary power vested with the court. Section 100 of the Civil Procedure Act outlines as follows: - **‘The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.’** 1. Order 8 Rule 3(1) of the Civil Procedure Rules sets out as follows: - **‘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.’** 1. The principles governing the exercise of such discretion were elucidated by the Court of Appeal in **Central Kenya Ltd v Trust Bank Ltd [2000] 2 EA 365 (CAK)** where it was held as follows: - ***“The amendment of pleadings and joinder of parties was aimed at allowing a litigant to plead the whole of the claim he was entitled to make in respect of his cause of action. A party would be allowed to make such amendments of pleadings as were necessary for determining the real issue in controversy or avoiding a multiplicity of suits provided (i) there had been no undue delay, (ii) no new or inconsistent cause of action was introduced, (iii) no vested interest or accrued legal right was affected, and (iv) the amendment could be allowed without injustice to the other side. Accordingly, all amendments should be freely allowed at any stage of the proceedings, provided that the amendment or joinder did not result in prejudice or injustice to the other party that could not be properly compensated for in costs; Beoco Ltd v Alfa Laval Co Ltd [1994] 4 All ER 464 adopted.”*** 1. A perusal of the draft further amended plaint marked as Exhibit “JKK-15” reveals that the amendments sought are with respect to pleading the entire course of transactions affecting the suit properties. In addition, the proposed amendments have sought to implead parties who have allegedly unlawfully benefited from unauthorized sale of the suit properties. 2. The proposed amendments are material to the conclusive and effective determination of all the issues in controversy between the parties. Contrary to the 9th Defendant’s opposition, the cause of action has not been altered. Rather, it has been amplified in order to elaborate and enlighten the parties and the court as to the Plaintiffs’ entire case against the Defendants. 3. It was contended that a raft of fourteen new prayers have been proposed in the draft further amended plaint which changes the substance of the suit and blurs the original issues. That is not the case whatsoever. To my understanding, the amendment to the prayers in the plaint will enable the Applicants to fully articulate their claim and clearly apportion liability to whichever party that is in unlawful occupation of the land. In the end, the court will be assisted in effectively determining the real matters in controversy. 4. Relevant to the finding that the proposed amendments herein are in order is the Court of Appeal decision in the case of **Joseph Ochieng & 2 others v First National Bank of Chicago Civil Appeal No. 149 of 1991** where the learned judges adopted the following excerpt from **Bullen and Leake & Jacob's Precedents of Pleading 12th Edition**: - ***“The ratio that emerges out of what was quoted from the said book is 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 the proposed amendment must not be immaterial or useless or merely technical; 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.”*** 1. Similarly, in **Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013] KECA 345 (KLR)**, the Court of appeal observed as follows:- ***“The learned judge in rejecting the application for amendment was no doubt exercising a judicial discretion which must be exercised rationally. We have ourselves looked at the proposed amendment and while we agree that most of it is more like a presentation of evidence or submissions and further that it introduces a third party, the Government, it is in our view not useless or immaterial as there are several new averments which flow from the original cause. Of significance, the amendments seek to introduce declaratory reliefs not sought in the original plaint. From paragraphs 10 to 16 of the proposed amended plaint, the appellant seeks to explain, in very many words, how his services were, according to him, unlawfully terminated… In our view, therefore, the learned trial judge failed to consider that the amendment sought was intended to determine with finality the dispute arising from the appellant's dismissal. We believe that the amendment has not been sought in bad faith. In any case, the respondent does not stand to suffer prejudice if the amendment is allowed.”*** 1. The present application was made timeously following the conclusion of the contempt proceedings that closed with the sentencing of the 9th Defendant on 24th September, 2025. No apparent prejudice has been demonstrated by the Defendants if the amendments sought are allowed. 2. On the second issue, in respect of joinder of defendants to a suit, Order 1 Rule 3 of the Civil Procedure Rules, 2010 outlines 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.’** 1. Order 1 Rule 10 (2) goes on to provide as follows: - **‘(2) 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 plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.’** 1. In the present application, the Applicants have sought to join the proposed 11th – 39th Defendants as parties to the suit so that a claim for recovery of land from them can be fully adjudicated. Again, the Applicants have sought the addition of the proposed 40th Defendant being a necessary party to the suit in order to ensure effectual execution of some of the reliefs sought in relation to the land register of the suit properties. In my view, the application for joinder of Defendants is merited as it ensures that the dispute is settled with finality. 2. In the case of **Nyalwanga (Suing as the Administrator of the Estate of Joan Atieno Mango - Deceased) & 2 others v Owuor & another [2025] KEELC 6910 (KLR)**, the court outlined as follows: - ***“Order 1 Rule 3 of the Civil Procedure Rules provides for persons who may be joined as defendants in a suit, and Order 1 Rule 10 of the Civil Procedure Rules empowers the court to substitute and add parties to an existing suit, as in the present case. In my view, under Order 1 rule 10(2) of the Civil Procedure Rules, the court can only join a person as defendant to an existing suit in two instances, first, where such person ought to have been joined as a defendant under Order 1 rule 3 of the Civil Procedure Rules aforesaid and was not so joined and secondly, where the presence of such person before the court may be necessary to enable the court to adjudicate and settle all questions involved in the suit. The court will, at the hearing of the joinder application, determine if the person sought to be joined as a defendant in this suit should have been joined as a party to the suit when the suit was filed or whether his/her presence before the court is necessary to enable the court to adjudicate and settle all questions involved in the suit.”*** 1. The third issue for determination is whether leave ought to be allowed to substitute the 3rd Defendant. It is not a contested fact that the 3rd Defendant is deceased following his demise on or about 26th October, 2024. The Applicants diligently made a petition for the issuance of a grant ad litem in MAKUENI MCSUCCMISC/E090/2025 JUSTUS KYALO KEESI VS VERONICA MUSENGYA MUTHIANI KYAMA. An order for substitution will aid in the expeditious disposal of the case in accordance with Order 1A of the Civil Procedure Rules. It is therefore in the interest of justice that the application for substitution be allowed. 2. On the question of service of summons by way of substituted service, the Applicants contended that the proposed 11th – 39th Defendants have previously been hostile and that it would be risky for a court process server to physically effect service. Order 5 Rule 17 of the Civil Procedure Rules outlines as follows:- **‘Where the court is satisfied that for any reason the summons cannot be served in accordance with any of the preceding rules of this Order, the court may on application order the summons to be served by affixing a copy thereof in some conspicuous place in the court-house, and also upon some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the court thinks fit.’** 1. In **Makau v Mbira (Originating Summons 185 of 2018) [2026] KEELC 4627 (KLR)**, the court held as follows: - ***“It is established law that a party to a case must be made aware of its existence to enable that party to either respond to it or not; see “Ogada – Versus - Mollin (2009) eKLR”. Furthermore, it is trite law that for any reason where summons cannot be served in the ordinary way, personal service, a party can be served by way of substituted service; see “Ephraim Njugu Njeru – Versus - Justin Bedan Muturi and 2 others (2006) eKLR””*** 1. In view of the circumstances of the case, it is the finding of this court that an order for substituted service of summons is merited. 2. In the end, the Applicants have demonstrated merit in the above application which is hereby allowed in the following terms: - 3. **Leave is hereby granted to the Plaintiffs to further amend the Amended Plaint dated 5th June, 2023 within 14 days.** 4. **Leave is hereby granted to the Plaintiffs to join the proposed 11th to 39th Defendants as Defendants in the suit.** 5. **Leave is hereby granted to the Plaintiffs to join the Land Registrar Makueni, the proposed 40th Defendant as a Defendant in the suit.** 6. **Leave is hereby granted to the Plaintiffs to substitute the 3rd Defendant with the Administrators ad litem of his Estate upon the determination of MCSUCCMISC/E090/2025; Justus Kyalo Keesi vs Veronica Musengya Muthiani Kyama.** 7. **Leave is hereby granted to the Plaintiffs to effect service of summons to enter appearance and notice of collection of the pleadings upon the 11th to 39th Defendants by way of advertisement in the Daily Nation and through the area Chief’s Office in Kilala Location.** 8. **Costs of the application shall be in the cause.** It is so ordered. **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 30TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Ms. Aomo for Plaintiffs/Applicants Mr. Muendo for Mr. Muthiani for 1st to 8th and 10th Defendants. Court assistant - Kilonzo