https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4118

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCLC E054 OF 2025** **JOSEPH MULA NZUKI ............................................................. PLAINTIFF/RESPONDENT** **VERSUS** **SYNGENTA GROUP SYNGENTA** **EAST AFRICA LIMITED ......................................................... DEFENDANT/APPLICANT** **RULING** 1. This ruling is on the notice of motion dated 13-2-2026. The motion is brought under **Orders 8** **rule 3, 11 rule 3(1)** and **(2) and 51** of the **Civil Procedure Rules** and **Sections 1A** and **3A** of the **Civil Procedure Act** and all other enabling provisions of law seeks three (3) residual orders as follows. **2. That the Plaintiff be granted leave to amend the plaint dated 24-9-2025.** **3. That the draft amended plaint attached herewith be deemed as duly filed upon payment of the requisite fees.** 1. The motion is based on five (5) grounds and is supported by the affidavit of the Plaintiff dated 13-2-2026. The gist of the affidavit and the grounds is as follows. Firstly, the Plaintiff intends to amend the plaint dated 24-9-2025 because the prayers sought in the plaint are necessary for justice to prevail in the event that the Plaintiff succeeds in his plaint. Secondly, the Defendant will not suffer any prejudice if the motion is allowed and it will have a chance to respond to the Plaintiff’s claim once it is served with it. Finally, the motion seeks to join Kenya Cuttings Limited as a party to this suit. 2. The motion is opposed by the 1st Defendant and one Renald Musumba Olando, the site Manager of Kenya Cuttings Ltd has sworn a replying affidavit dated 20-4-2026 in which he replies as follows. One, Kenya Cuttings Limited and Syngenta East Africa Ltd are separate and distinct legal entities, each of which is a subsidiary of the broader Syngenta Group. Two, the Defendant had contested its inclusion in the suit herein vide an application dated 21-10-2025. This application has not been responded to by the Plaintiff and the Court is yet to make a ruling thereon. Three, the Court granted the Plaintiff an opportunity to amend its pleadings in its ruling dated 9-12-2025 but he has failed to do so. Four, the Defendant filed its defence on 17-12-2025 and the Plaintiff has not yet filed a reply thereto. Five, the pleadings by the Plaintiff do not demonstrate a basis for retaining the Defendant as a party to this suit. It is quite odd that the Plaintiff’s application is anchored on material filed by the Defendant in its application and not from any independent evidence. The Defendant’s application dated 21-10-2025 is anchored on uncontroverted evidence highlighting the fact that there is no evidence linking either the Defendant or the intended 2nd Defendant to the Plaintiff’s alleged cause of action. The absence of any evidence to rebut the Defendants’ evidence proves that there is no basis for the court to subject the Defendant and KCL to the rigours of a trial. Six, the proposed amendments do not address the deficiency in the pleadings but only seek to add an additional party who is not necessary. The Defendant and KCL will be constrained to defend the suit for the sake of defending but not because there is any cause of action against them. 3. Counsel for the parties filed written submissions dated 15-6-2026 and 22-6-226 respectively. The Plaintiff’s counsel did not frame any issues for determination. The Defendant’s Counsel identified two issues. 4. **Whether the Plaintiff’s application seeking amendment has merit.** 5. **Whether the Defendant should be struck from these proceedings.** 6. I have carefully considered the two motions 21-10-2025 and 13-2-2026 respectively including the affidavits, grounds, the written submissions and the law cited therein. I find that the following issues arise. 7. **Whether the Plaintiff’s suit discloses a cause of action.** 8. **Whether the pleaded material discloses a nexus between any or both the Defendant and the proposed Defendant to the claim by the Plaintiff.** 9. **Whether it is fair or just to strike out pleadings without hearing the suit.** 10. **Whether the amendment sought is fair and just.** 11. Regarding the first issue, I find that the Plaintiff’s suit discloses a cause of action. The cause of action is trespass on the Plaintiff’s land parcel No. Mitubiri/Wempa/Block 1/153 by letting company waste flow into the suit land. The act complained of is actionable. 12. On the second issue, I find that there is an averment at paragraph 8 of the amended plaint amended on 3-2-2026 which reads as follows. **“The 1st and 2nd Defendants have been causing company waste to flow from their company, to the Plaintiff’s land without his consent or authority”**. Again, in the Plaintiff’s witness statement dated 24-9-2025 at page 4, it is stated as follows. **“That the Defendant has been dumping and directing waste materials including chemical effluents and agricultural waste from its flower operations onto the suit property without my consent or authority**”. Although the Defendant and the proposed Defendant deny the two averments, it is my finding that it is a triable issue whether the Defendants are dumping chemicals into the Plaintiffs land and the only way to resolve the dispute is through a trial. There is no way triable issues can be determined summarily without hearing both parties. 1. It is my finding in regard to the third issue that striking out the Defendants or one of them from the suit is too draconian and unfair since it contravenes the right to a fair hearing. Striking out the Defendants would mean that there will be no suit left. The suit will have been terminated in a manner that is neither procedural nor lawful. In the case of **D.T. Dobie and Co. (Kenya)Ltd vs. Muchina** it was held as follows. **“The Court ought to act very cautiously and carefully and consider all the facts of the case without embarking upon a trial before dismissing a case for not disclosing a reasonable cause of action…** **No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action.”** To cap it all, we have Article 50(1) of the Constitution of Kenya which provides as follows. **“ Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”** 1. Finally, on the final issue, I find that the amendment sought is fair and just because it is alleged that the proposed second Defendant is the owner of the suit land that is the source of the waste flowing into the Plaintiff’s land. The proposed 2nd Defendant is therefore a necessary party in this dispute. 2. In conclusion and for the reasons given, I **dismiss** the notice of motion dated 21-10-2025 and allow the one dated 13-2-2026 in terms of **prayers 2** and **3.** Costs in the cause. **It is so ordered.** **Dated, Signed and Delivered virtually at Murang’a this 6th day of July, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistant – Antony** **Plaintiff’s Counsel – Mr Gachari holding brief.** **Defendant’s Counsel – Mr Rao holding brief for Mrs Opiyo**