https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3617

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC CONSTITUTIONAL PETITION NO. E030 OF 2024** **JOSEPH KIPLAGAT KEITANY** **& BARNABAS KIPKURGAT TEMBULIO ………………….…..… PETITIONERS** **=VERSUS=** **CHIEF LAND REGISTRAR …………………………….………1ST RESPONDENT** **HONOURABLE ATTORNEY GENERAL ……………………2ND RESPONDENT** **REGISTRAR OF TITLES ………………………………………3RD RESPONDENT** **AND** **HENRY MWANGI MUNYIRI …………………………1ST INTERESTED PARTY** **BLUE BELL REALITY INVESTMENT LIMITED …....... 2ND INTERESTED PARTY** **RULING** 1. By a Notice of Motion dated 24th March 2025, brought under Rules 5 and 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Articles 22 and 159 of the Constitution of Kenya, the Petitioners/Applicants seek the following orders: 1. ***That the Honourable Court be pleased to grant leave to the Petitioners/Applicants to amend the Petition dated the 2nd May, 2024, in terms of the annexed draft Amended petition.*** 2. ***That the Honourable Court be pleased to order that P. A Pesa Registrar of Titles, Henry Mwangi Munyiri and Blue Bell Reality Investment Limited be added and/or substituted into this Petition as the 4th, 5th and 6th Respondents respectively.*** 3. ***That the Draft Amended Petition herein be deemed as duly filed, subject to the payment of the requisite court filing fees.*** 4. ***That the costs of this application be in the cause.*** 2. The application is based on the grounds appearing on its face together with the supporting affidavit of Joseph Kilpagat Keitany, sworn on even date. **THE APPLICANT’S CASE** 1. The deponent averred that the Petitioners intend to amend the Petition dated 2nd May 2024 so as to introduce additional material facts and to include the 4th, 5th, and 6th Respondents in order to enable the Court to determine the issues in controversy between the parties. 2. He further averred that the Respondents have violated their right to protection of private property. He explained that the parties initially named as Interested Parties in the Petition are correctly identified as Respondents against whom they have substantive grievances, including a claim for damages arising from malfeasance. 3. He argued that the proposed Amended Petition is intended to present the Petitioners' case for effective adjudication, including their grievances regarding the cancellation of their Certificate of Title and their claim to land, along with the protections under Sections 24, 25, and 26 of the Land Registration Act, as well as Articles 25(c) and 40 of the Constitution. He emphasized that their claims for reinstatement of title and damages should be addressed within the Petition to avoid multiplicity of suits. 4. He contended that the Petitioners had withdrawn **Environment and Land Court Milimani Case No. E015 of 2023, Joseph Kiplagat Keitany & Barnabas Kipkurgat Tembulio t/a Ketem Agencies v Henry Mwangi Munyiri & 3 Others**, on 28th May 2024, and that the case was closed. 5. The deponent averred that the discretionary power to grant or deny leave to amend pleadings can be exercised at any stage of the proceedings to serve the interest of justice. He contended that the proposed amendment should be allowed if it is made in good faith and if it will not cause the opposing party harm or prejudice that cannot be remedied by costs. 6. He further contended that a party is entitled to make amendments necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, no new or inconsistent cause of action is introduced and no vested interest or accrued legal right is affected. 7. He contended that some of the proposed amendments strike at the heart of the transaction between the parties, which led to the cancellation of the Petitioners' Certificate of Title without a hearing, in violation of the audi alteram partem rule. He maintained that the proposed amendments would not prejudice the Respondents, who would still have the opportunity to present rebuttal evidence. **THE INTERESTED PARTIES’ CASE** 1. The 1st and 2nd Interested Parties filed Grounds of Opposition dated 9th May 2025 in opposition to the application. They stated that although the Petition challenges the process of cancelling the Petitioners' title to L.R. No. 209/7989, the title does not enjoy protection under Article 40 of the Constitution because it was unlawfully and irregularly acquired. They contended that the Petitioners' title is null and void ab initio unless the Petitioners prove otherwise. 2. They argued that, to the extent that the Petitioners' title was illegally acquired and subsequently cancelled by the 1st Respondent, the Petitioners have no legal interest in the suit property and therefore lack standing to challenge the 2nd Interested Party's title. They contended that the proposed amendments challenging the title are futile, as the Petitioners can only have locus standi if they demonstrate that their own title was lawfully acquired. 3. The Interested Parties contended that they are not opposed to the amendments proposed in paragraphs 23A to J and prayer 5A of the draft Amended Petition as long as the process used by the Petitioners in acquiring their title is justified. However, they opposed all proposed amendments that seek to challenge the 2nd Interested Party's title for the reasons aforesaid. 4. They argued that damages for malfeasance cannot be awarded against the Interested Parties in their personal capacities. They asserted that if the cancellation of the Petitioners' title is irregular due to alleged malfeasance by land officials, the proper remedy would be an action against the State for damages, not for possession or ownership of the property. 5. They argued that the issues raised and the reliefs sought in the proposed amendments are purely civil in nature and can properly be determined through a civil claim, rather than a constitutional Petition. They contended that allowing the application would complicate the issues in the matter and delay the resolution of a petition to which the parties have already responded. They asserted that the application is frivolous, an abuse of the court process, and was filed in bad faith to fill gaps exposed by the respective responses to the Petition. In conclusion, they urged the Court to dismiss the application with costs. 6. The application was canvassed by way of written submissions. **THE PETITIONERS’ SUBMISSIONS** 1. The Petitioners filed their submissions dated 22nd September 2025. 2. On behalf of the Petitioners, Counsel drew the Court's attention to the orders of Ogutu Mboya J. dated 28th May 2024 in **Environment and Land Court Milimani Case No. E015 of 2023, Joseph Kiplagat Keitany & Barnabas Kipkurgat Tembulio t/a Ketem Agencies v Henry Mwangi Munyiri & 3 Others,** whichdirected that the application dated 20th May 2024 and the entire suit be marked as withdrawn with no order as to costs. Counsel contended that parties were directed to address their issues in the present Petition. Counsel submitted that all parties were aware of those directions, and therefore, all the issues should be addressed in the present Petition to avoid a multiplicity of suits. 3. Counsel submitted that the purpose of amending pleadings is to ensure that litigation is based on the true facts which the parties ultimately intend to rely on, rather than on a false hypothesis of the facts already pleaded. Counsel argued that the power of amendment makes the court's function more effective in determining the substantive merits of the case rather than holding it captive to the form of the proceedings. Counsel relied on **Institute for Social Accountability & Another v Parliament of Kenya & 3 Others [2014] eKLR**, where the Court adopted this approach in determining whether to allow amendment of consolidated Petitions. 4. Counsel further submitted that the overriding consideration is whether the amendments are necessary for the determination of the matter in controversy, and whether any delay in bringing the application is likely to prejudice the opposing party beyond compensation in costs. To support this point, Counsel relied on **Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000] eKLR, Investments and Mortgages Bank Limited v Nancy Thumari & 3 Others [2015] eKLR**, **Harit Sheth Advocates v NIC Bank [2014] eKLR**, and **Eastern Bakery v Castelino (1958) EA 461**. 5. Counsel submitted that the proposed amendments are necessary as they will present the full facts of the Petitioners' case for effective adjudication, including their grievances relating to the cancellation of their Certificate of Title and their claims under Sections 24, 25, and 26 of the Land Registration Act and Articles 25(c) and 40 of the Constitution of Kenya. Counsel submitted that P.A. Pesa, the Registrar of Titles, is specifically listed at Entry No. 2 of the title register as the officer who effected the cancellation of the Petitioners' Certificate of Title on 29th September 2022 under Section 79 of the Land Registration Act. Counsel submitted that the proposed 6th Respondent's letter dated 23rd August 2022, addressed to the Principal Secretary, Ministry of Lands and Physical Planning, precipitated the cancellation of the title approximately one month later. Counsel further submitted that the Petitioners' correspondence to the Chief Land Registrar, dated 28th August 2023, seeking to reverse the cancellation, had gone unacknowledged, leaving them with no alternative but to seek judicial intervention. 6. Counsel submitted that the grounds of opposition raised by the 1st and 2nd Interested Parties are a response to the substantive Petition rather than grounds opposing the amendment. Counsel contended that the Interested Parties have not demonstrated any prejudice that cannot be compensated by an award of costs. Counsel argued that the Interested Parties' objection based on the illegality of the Petitioners' title is misguided, as it sought to drive the Petitioners from the seat of justice without a hearing, thereby violating the right to a fair trial as enshrined in Articles 25(c) and 50 of the Constitution. 7. To support this argument, Counsel relied on **Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 Others [2013] eKLR,** where the Court of Appeal held that the right to a fair hearing is a well-protected constitutional right and the cornerstone of the rule of law, and that courts should not act in darkness without the full facts of the case before them. Counsel also relied on **Lucy Bosire v Kehancha Division Land Dispute Tribunal & 2 Others [2013] eKLR**, where it was held that land disputes, being sensitive and emotive, should be heard on their merits so that parties are not driven from the seat of justice without being heard. 8. Regarding the assertions that the claims are purely civil in nature, Counsel submitted that this is not a germane issue at the amendment stage. Counsel maintained that the Petition meets the criteria established in **Anarita Karimi Njeru v Republic [1979] eKLR,** having outlined the right to protection of private property under Article 40 and the violation of Article 47(1) and (2) of the Constitution and Section 4 of the Fair Administrative Actions Act. **THE INTERESTED PARTIES’ SUBMISSIONS** 1. The 1st and 2nd Interested parties filed their submissions dated 2nd December 2025. 2. On behalf of the 1st and 2nd Interested Parties, Counsel submitted that the law on joinder is governed by Rule 5(d) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules), which empowers the Court at any stage to order that the name of any improperly joined party be struck out, and to add any person who should have been joined or whose presence is necessary to resolve the matter. 3. Counsel relied on **Technomatic Limited t/a Promopack Company v Kenya Wine Agencies Limited & Another [2014] KEHC 4072 (KLR),** where Havelock J., citing Nambuye J. in **Kingori v Chege & 3 Others (2002) 2 KLR 250,** where the Court held that a necessary party is a party whose presence is essential to enforce any ultimate order of the Court. Counsel further acknowledged thatRule 18 of the Mutunga Rules confers discretion to grant leave to amend pleadings at any stage of the proceedings. Further reliance was placed on **Mwakio v Kenya Commercial Bank Ltd [1987] KECA 83 (KLR**), wherethe Court of Appeal held that leave should generally be granted unless the applicant acts in bad faith or the amendment would cause irreparable harm. Counsel contended that both of those exceptional circumstances apply in the present case. 4. Counsel submitted that the proposed amendments are untenable as they sought to join the Interested Parties as Respondents and to challenge the 2nd Interested Party's title to the suit property, despite the Petitioners' title having been unlawfully acquired and subsequently cancelled. 5. Counsel contended that the Petitioners' title is null and void ab initio and does not qualify for constitutional protection under Article 40(6) of the Constitution. Counsel maintained that until the Petitioners' title is reinstated or validated by a competent Court, any attempt to challenge the 2nd Interested Party's title is premature. 6. Counsel further submitted that the Petitioners lack locus standi to challenge a valid registered title. Counsel argued that the cancellation of the Petitioners' title extinguished any proprietary interest. Counsel further submitted that the proposed amendments challenging the 2nd Interested Party's title are legally untenable and amount to an abuse of the Court process. 7. Counsel submitted that the proposed amendments seeking damages against the Interested Parties for malfeasance are untenable, as any alleged irregularity by public officials is only actionable against the State, not against private parties who acted in good faith. To support this argument, Counsel relied on **Jones v Swansea City Council [1990] 1 WLR 55, David Peterson Kiengo & 2 Others v Kariuki Thuo Machakos HCCC Nos. 180 and 220 of 2011 [2012] eKLR** and **Cyrus Kabira Njine & Another v Esther Muthoni Ndambiri & 5 Others [2020] KEHC 5252 (KLR).** 8. Counsel submitted that the issues raised in the proposed amendments are civil in nature, involving disputes over ownership and private liability claims. Counsel contended that a constitutional petition is not the appropriate forum for such claims. To support this point, Counsel relied on **Yaa v District Land Registrar Kilifi County (Petition 23 of 2022) [2023] KEELC 21694 (KLR)**. Counsel further submitted that allowing the amendments would convolute the issues, delay the proceedings, and prejudice the Interested Parties, thereby amounting to an abuse of the court process. 9. Counsel submitted that the Petitioners' argument that amendments should be allowed freely to determine the real controversy and to avoid a multiplicity of suits fails to appreciate that the proposed amendments attempt to impose liability on the Interested Parties for matters properly actionable against the State, and to challenge a valid registered title without legal standing. Counsel contends that this would prejudice the Interested Parties beyond mere compensation in costs because they would be forced to defend claims that have no lawful foundation. 10. Counsel further submitted that the objections based on the illegality of the Petitioners' title are substantive rather than procedural in nature, and that a claim without a lawful basis cannot establish a right to challenge another registered proprietor's title. Counsel contended that permitting the amendments in these circumstances would reward bad faith, introduce unsustainable claims, and delay the course of justice. **THE PETITIONER’S SUPPLEMENTARY SUBMISSIONS** 1. The Petitioner filed Supplementary Submissions dated 26th January 2026. On behalf of the Petitioner, Counsel submitted that opposition to the amendment by the 1st and 2nd Interested Parties is disproportionate to what is before the court, as it concerns the issue of ownership of the suit land rather than the application for amendment. Counsel reiterated that amendments should be allowed freely at any stage of proceedings, provided no prejudice incapable of being compensated by costs is occasioned to the opposing party. 2. Counsel submitted that the 1st and 2nd Interested Parties' contention that the Petitioners' title is null and void ab initio and therefore incapable of constitutional protection is unfounded and cannot in itself serve as a barrier to the proposed amendments. Counsel argued that the validity of the Petitioners' title is a substantive issue reserved for determination by the Court after hearing the parties on the merits and not at the interlocutory stage. To support this point, reliance was placed on **Republic v Chief Land Registrar & Another Ex parte Yosabia Kerubo Manyura [2018] KEELC 1074 (KLR).** 3. Counsel submitted that the 1st and 2nd Interested Parties, by seeking to block the amendments, were effectively seeking to obstruct the hearing of the Petitioners' case, thereby violating the audi alteram partem rule. Counsel relied on **Ngare v Ogamba (Environment and Land Case E001 of 2022) [2025] KEELC 6952 (KLR),** where the Supreme Court's exposition of the audi alteram partem rule in **Evans Odhiambo Kidero & 4 Others v Ferdinand Ndungu Waititu & 4 Others [2014] eKLR** was cited to emphasize that a fair hearing encompasses the rules of natural justice, which include the concept of audi alteram partem and nemo judex in causa sua, and that it is the duty of the courts when dealing with individual cases to determine whether the rules of natural justice have been violated. Further reliance was placed on **Sceneries Limited v National Land Commission [2017] eKLR.** **ANALYSIS AND DETERMINATION** 1. Having considered the application, the grounds of opposition and the rival submissions, the following issues arise for determination: 1. *Whether the claims can be addressed in a constitutional petition;* 2. *Whether the proposed amendments satisfy the legal threshold for the grant of leave to amend; and* 3. *Whether the proposed joinder is justified.* 2. Regarding the first issue, the Interested Parties contend that the proposed amendments raise issues of a purely civil character, specifically disputes over ownership and private liability, which are not appropriate for resolution through a constitutional petition. 3. In **Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR),** the Supreme Court held that: ***“The principle of avoidance entails that a Court will not determine a constitutional issue when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC), the Constitutional Court, Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:*** ***I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”*** 1. The Petitioners contend that their title to the suit property was unlawfully cancelled without a hearing, thereby violating their right to property under Article 40 and their right to a fair hearing under Article 47 of the Constitution. They also challenge the Interested Parties’ title on the grounds of fraud. The remedies sought in the petition are declaratory, injunctive, and compensatory, and can be granted under Article 23 of the Constitution. In light of the foregoing, I find that the dispute can be addressed through a constitutional petition. 2. Regarding the second issue**,** Rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules) empowers this Court to permit the amendment of pleadings at any stage of the proceedings with leave of the Court. 3. In **Institute for Social Accountability & another v Parliament of Kenya & 2 others; Commission for the Implementation of the Constitution (Interested Party) [2014] KEHC 7356 (KLR),** the Court held that: ***“The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings.*** ***Rule 18 of the Rules clearly stipulates that the court may permit an amendment at any stage of the proceedings. The court will normally allow parties to make such amendments as may be necessary for determining the real questions in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, no new or inconsistent cause of action is introduced, and no vested interest or accrued legal right is affected and that the amendment can be allowed without an injustice to the other side.”*** 1. In **Central Kenya Limited vs Trust Bank Limited (2000) 2 E.A 365** the Court of Appeal held that: ***“A party is allowed to make such amendments as may be 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 is affected and that the amendment can be allowed without injustice to the other side.”*** 1. From the decisions cited above, the legal parameters governing the amendment of pleadings can be summarized as follows: the amendment should not introduce new or inconsistent causes of action or issues; the amendment should be made timeously; it should not affect any vested interest or accrued legal rights, nor should it prejudice or cause injustice to the other party, which cannot be remedied by costs. 2. The first issue for determination is whether there was any undue delay. The Petition herein was filed on 3rd March 2024. The application for amendment was filed on 24th March 2025, by which time, the Respondents and Interested Parties had already filed their respective responses. The record shows that ELC Case No. E015 of 2023 was withdrawn on 28th May 2024. While it is clear that there was a delay in filing this application, delay alone is not fatal to an application for amendment. The Court must consider whether the delay is undue, given the circumstances, and whether it has caused irreparable prejudice to the opposing parties. In the matter at hand, based on the material presented before the Court, the delay was not of such magnitude as to constitute a bar to the grant of leave. 3. The Interested Parties contend that the proposed amendments challenge the 2nd Interested Party's title and seek damages for malfeasance, asserting that these constitute new claims that are inconsistent with the existing Petition. 4. The proposed amendments build on the same factual basis as the original Petition, namely, the alleged irregular cancellation of the Petitioners' Certificate of Title to L.R. No. 209/7989 and the consequent violation of their property rights. The proposed additions, including the pleaded history of title acquisition, the facts concerning the alleged irregular title, its purported transfer and the additional declaratory and injunctive relief, stem from the same factual basis. The proposed amendment does not introduce a cause of action that contradicts the claim already pleaded. The amendments, in the court's view, constitute an extension of the existing claim rather than a deviation from it. 5. Regarding the third issue, Section 5(d) and (e) of the Mutunga Rules provides as follows: ***(d) 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 just—*** ***(i) order that the name of any party improperly joined be struck out; and*** ***(ii) that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court to adjudicate upon and settle the matter, be added.*** ***(e) Where a respondent is added or substituted, the petition shall, unless the court otherwise directs, be amended in such a manner as may be necessary, and amended copies of the petition shall be served on the new respondent and, if the court thinks fit, on the original respondents.*** 43. The fundamental principles governing joinder were outlined in the case of **Kingori v Chege, as cited in Technomatic Limited t/a Promopack Company v Kenya Wine Agencies Limited & Another [2014] KEHC 4072 (KLR),** as follows. * + 1. ***He must be a necessary party.*** 2. ***He must be a proper party.*** 3. ***In the case of a defendant, there must be a relief flowing from that defendant to the plaintiff.*** 4. ***The ultimate order or decree cannot be enforced without his presence in the matter.*** 5. ***His presence is necessary to enable the Court to effectively and completely adjudicate upon and settle all questions involved in the suit.*** 1. The Petitioners contend that P.A. Pesa, the Registrar of Titles, is explicitly listed at Entry No. 2 of the title as the officer responsible for cancelling the Petitioners' Certificate of Title on 29th September 2022 under Section 79 of the Land Registration Act. The proposed Respondents, on their part, assert that they hold lawful title to the suit property, which the Petitioner strongly contests. 2. Based on the material presented before this Court, the joinder of the proposed parties is necessary to enable effectual adjudication. Any order relating to the alleged fraudulent cancellation of the Petitioner’s title would be unenforceable without the joinder of the Registrar of Titles. Similarly, any determination regarding the proprietary chain leading to the current registration would be incomplete without the parties alleged to be in that chain. The joinder of the Respondents is therefore justified. 3. The 1st and 2nd Interested Parties also argued that the Petitioners' title is null and void ab initio and has been lawfully cancelled, and that the Petitioners therefore lack locus standi to challenge the 2nd Interested Party's title under Article 40(6) of theConstitution. They further contended that damages for malfeasance cannot be claimed against private parties acting in good faith, and that such a claim is properly actionable against the State. 4. These arguments cannot be considered at this stage. The validity of the Petitioners' title and the sustainability of the claim for damages against the Interested Parties are all substantive issues that relate to the merits of the Petition. 5. The issue to be determined at this stage is whether the proposed amendments are made in good faith, do not introduce inconsistent causes of action, and do not cause irreparable prejudice to the opposing parties. To dismiss the amendment based on contested assertions that the Petitioners' title was illegally obtained or that their damages claim is unsustainable would resolve the very issues in dispute at a preliminary stage, without evidence, and would deny the Petitioners a fair hearing. These objections are an answer to the substantive Petition and will be considered at that stage. 6. The upshot of the foregoing is that the application dated 24th March 2025 is merited and is hereby allowed in the following terms: 1. ***Leave is hereby granted to the Petitioners to amend the Petition dated 2nd May 2024 in terms of the annexed draft Amended Petition.*** 2. ***P.A Pesa Registrar of Titles, Henry Mwangi Munyiri and Blue Bell Reality Investment Limited are hereby enjoined as the 4th, 5th and 6th respondents respectively.*** 3. ***The draft Amended Petition dated 24th March 2025 is deemed as duly filed, subject to the payment of the requisite court filing fees.*** 4. ***The Respondents shall be at liberty to file their responses or to amend their previously filed responses within fourteen days of service of the Amended Petition. The Petitioners will also be at liberty to file a further affidavit within 7 days of receipt of the Respondents’ responses*** 5. ***The costs of this application shall be in the cause.*** **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 5TH DAY OF JUNE, 2026.** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF**: Kiget holding brief for Arusei for the Petitioner Ahmed – Court assistant