Mutu & another v Mutua (Environment and Land Case E312 of 2021) [2026] KEMC 150 (KLR) (25 June 2026) (Ruling)

Mutu & another v Mutua (Environment and Land Case E312 of 2021) [2026] KEMC 150 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEMC 150 (KLR) Republic of Kenya In the Mombasa Law Courts Environment and Land Case E312 of 2021 EM Mwamuye, SRM June 25, 2026 Between Daniel Kimanthi Mutu 1st Plaintiff Caroline Mwandawiro 2nd Plaintiff and Elijah Kitonga Mutua Defendant Ruling Introduction 1.Before this Court is the Defendant's Notice of Motion dated 17th February 2026 seeking principally that the 1st Plaintiff, be summoned to personally attend court for purposes of ascertaining whether the present suit was instituted with his knowledge, authority and consent, and whether the Defendant was managing and safeguarding the suit property pursuant to the 1st Plaintiff's instructions. The Defendant further seeks stay of proceedings pending such attendance and directions. 2.The application is supported by the Defendant's affidavit sworn on 17th February 2026 and Supplementary Affidavit sworn on 16th May 2026. 3.The application is opposed through the Replying Affidavit of the 2nd Plaintiff, sworn on 8th April 2026 and the Plaintiffs' written submissions. 4.The Court has carefully considered the Motion, affidavits, annexures and rival submissions by counsel. Background 5.The dispute concerns Plot No. 18055/I/MN, Title No. CR 62040 situated in Bamburi, Mombasa County. 6.The Plaintiffs contend that they are the registered joint proprietors of the suit property. They allege that the Defendant unlawfully occupied the property, interfered with their tenant, installed his own tenant and continues to collect rent therefrom. 7.The Defendant, who is the brother of the 1st Plaintiff, does not claim ownership of the property. His position is that he acquired, managed, protected and maintained the property under the authority and instructions of the 1st Plaintiff. He contends that the suit was instituted by the 2nd Plaintiff without the knowledge or authority of the 1st Plaintiff and that the matter can be resolved if the 1st Plaintiff personally appears before Court and clarifies his position. 8.The Plaintiffs deny those assertions and maintain that the 1st Plaintiff expressly authorized the institution and prosecution of the suit through a written Authority to Act, Appear, Plead and Depone dated 17th December 2024. Issues for Determination 9.Having considered the pleadings and submissions, the Court is of the view that the following issues arise for determination:a.Whether the Court should compel the personal attendance of the 1st Plaintiff at this interlocutory stage.b.Whether the Defendant has established sufficient basis for the Court to inquire into the authority under which the suit was instituted.c.Whether proceedings should be stayed pending the attendance of the 1st Plaintiff.d.What orders should issue as to costs. Analysis Whether the Court should compel the personal attendance of the 1st Plaintiff 10.The cornerstone of the Defendant's application is that the suit was instituted without the authority of the 1st Plaintiff. 11.The Defendant argues that no authority was filed in compliance with Order 1 Rule 13(2) of the Civil Procedure Rules and that the authority exhibited as CM-1 in the Replying Affidavit cannot cure that omission. 12.The Plaintiffs on the other hand contend that the 1st Plaintiff executed a written authority dated 17th December 2024 authorizing the 2nd Plaintiff to act on his behalf and that the Defendant's allegations are unsupported. 13.At this stage, the Court must be careful not to descend into the arena of determining contested factual matters that properly belong to the trial. 14.The Defendant invites the Court to summon the 1st Plaintiff and effectively interrogate him on whether he authorized the institution of the suit and whether he instructed the Defendant to manage the property. 15.With respect, the Court does not find any provision of law cited by the Defendant that empowers the Court to conduct such an inquiry at an interlocutory stage. 16.Order 1 Rule 10(2) concerns addition, substitution or striking out of parties where their presence is necessary for the complete adjudication of a dispute. It does not provide a mechanism for summoning an existing plaintiff for examination on disputed factual matters relating to authority. 17.Similarly, Order 19 Rule 2 deals with evidence by affidavit and cross-examination of deponents where appropriate. The Defendant has not sought leave to cross-examine the deponent of the Replying Affidavit, nor has he established grounds warranting such a course. 18.The Court agrees with the Plaintiffs that the issues raised by the Defendant are evidentiary questions which can properly be ventilated at trial. Whether the 1st Plaintiff authorized the suit, whether the Defendant acted under his authority and whether the Defendant's occupation of the property was lawful are matters requiring evidence and testing through the ordinary trial process. 19.The Court cannot convert an interlocutory application into a mini-trial. Whether sufficient basis has been established to inquire into the authority to sue 20.The Defendant has placed considerable emphasis on Order 1 Rule 13(2) and the alleged failure to file authority. 21.The Court notes that the Plaintiffs have exhibited a written authority dated 17th December 2024 allegedly executed by the 1st Plaintiff. 22.Whether that authority was filed in strict compliance with procedural requirements and the legal consequences thereof are matters that can be raised as substantive issues during the hearing of the suit. 23.More importantly, the existence of a written authority executed by the 1st Plaintiff directly contradicts the Defendant's assertion that there was no authority whatsoever. 24.The Court is unable, on affidavit evidence alone, to conclusively determine either position. 25.The Defendant has not presented any affidavit from the 1st Plaintiff denying execution of the authority or disowning the proceedings. Neither has the Defendant demonstrated that the 1st Plaintiff has sought to withdraw from the suit or has expressed dissatisfaction with its institution. 26.The application therefore rests substantially on the Defendant's belief that the suit was filed without authority. That belief, however strongly held, does not constitute evidence from the 1st Plaintiff himself. 27.The Court therefore finds that the Defendant has not established a sufficient basis for the extraordinary orders sought. Whether proceedings should be stayed 28.The Defendant further seeks stay of proceedings pending the attendance of the 1st Plaintiff. 29.A stay of proceedings is a serious remedy because it halts the progress of litigation and delays determination of disputes. 30.The Court must be satisfied that such an order is necessary in the interests of justice. 31.In the present case, the Defendant has not demonstrated any prejudice that cannot be addressed during trial. The questions he raises concerning authority and his alleged mandate from the 1st Plaintiff can be canvassed through witness testimony and cross-examination. 32.On the other hand, staying proceedings would unnecessarily delay resolution of a dispute concerning occupation and use of property. The Court therefore finds no basis for granting a stay. Observations by the Court 33.The Court nevertheless notes that the Defendant repeatedly states that:i.He claims no ownership of the property.ii.He is willing to abide by the wishes of the 1st Plaintiff.iii.He is willing to vacate and cease involvement with the property should the 1st Plaintiff so direct.iv.The Court further notes that the parties are closely related, the Defendant being the brother of the 1st Plaintiff.v.This dispute appears to have a significant family dimension. 34.In keeping with Article 159(2)(c) of the Constitution, the Court encourages the parties, together with the 1st Plaintiff, to explore amicable settlement, mediation or court-annexed mediation. Such engagement may narrow the issues in controversy and potentially resolve the dispute without the need for prolonged litigation. 35.However, such encouragement cannot be transformed into a compulsory appearance order of the nature sought in the present Motion. Disposition 36.Accordingly, the Court makes the following orders:i.The Notice of Motion dated 17th February 2026 is hereby dismissed.ii.The prayer seeking the personal attendance of the 1st Plaintiff for purposes of inquiry into authority is declined.iii.The prayer seeking stay of proceedings is declined.iv.The issues raised by the Defendant regarding authority to institute the suit, the Defendant's alleged mandate from the 1st Plaintiff and all other disputed factual matters shall be determined upon hearing of the suit on its merits.v.The parties are encouraged to consider mediation or an amicable family settlement before the hearing date.vi.Costs of the application shall be in the cause. It is so ordered. DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 25TH JUNE 2026.………………………..HON.E.M. MWAMUYESENIOR RESIDENT MAGISTRATE