https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3494

Muinde v Mwania & 2 others (Environment and Land Case Civil Suit E052 of 2024) [2026] KEELC 3494 (KLR) (9 June 2026) (Ruling) Neutral citation: [2026] KEELC 3494 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Case Civil Suit E052 of 2024 AY Koross, J June 9, 2026 Between Paschalia Mumbi Muinde Plaintiff and Ronald Ngala Mwania 1st Defendant Amin Hussein 2nd Defendant Next Level Properties Ltd 3rd Defendant Ruling 1.This is a ruling on two notices of motion, one dated 8 July 2024 by the plaintiff and another by the 1st respondent, dated 19 August 2025. In the former motion, the plaintiff has sought the following reliefs:a.Spent.b.Spent.c.That the defendants herein, their agents and/or employees be restrained from entering into, trespassing into, subdividing or transferring and/or in any way interfering with land reference no. Mavoko Town Block 2/44 in Mavoko sub-county in Machakos County, pending the hearing and determination of this suit.d.That the costs of this application be awarded to the plaintiff. 2.The motion is based on the grounds listed on the face thereof and on the supporting affidavit of the plaintiff, sworn on the instant date. In summary, she asserts that she is the first wife of the 1st defendant and that her matrimonial home is in L.R. no. Mavoko Town Block 2/44 (suit property), registered in his name. She states she has been living there with her children since 1990. 3.Nonetheless, on 10 May 2024 and again on 14th and 15th June 2024, the 2nd and 3rd defendants, accompanied by a surveyor, entered the suit property and began taking measurements, placing beacons and advertisement boards, and claiming to have been instructed by the 1st defendant to offer sections of the said land for sale. Lastly, no spousal consent was sought and/or obtained from her. To substantiate her assertions, she provided a copy of the title document for the suit property in the name of Joseph Mwania Kilukukumi, ostensibly the 1st defendant’s father. 4.The 3rd defendant opposed the motion through the affidavit of John Thiongo, sworn on 19 November 2025, who concisely maintains that the 3rd defendant is a stranger to most of the averments made, and it has no interest in the suit property, whether by registration or purchase. The plaintiff has not provided any evidence establishing a connection between herself and the 3rd defendant. Therefore, the motion together with the entire suit should be dismissed or struck out as no cause of action arises against the 3rd defendant. 5.As for the latter application, it prays for the following reliefs from this court: -a.That the plaint filed by the plaintiff dated 8 July 2024 be struck out as it discloses no reasonable cause of action in law, and the suit be dismissed.b.That the costs of the main suit and this application be paid to the defendants. 6.The motion relies on the grounds indicated on the face thereof, and it is alleged that the plaintiff does not occupy the suit property, and it is not matrimonial property and is not registered in the name of the 1st defendant. Further, the registered proprietor is not a party to the suit and has been registered as such since 2008. 7.Additionally, the 1st, 2nd, and 3rd defendants have no interest or claim over the subject matter of the suit. The suit as filed and the cause of action are statute-barred, as the 1st defendant transferred the property over 16 years ago, and no leave was sought to extend the time to file this suit. Lastly, the 2nd and 3rd defendants have not trespassed into or occupied any part of the suit property, and the plaintiff has not filed any response to the defence and counterclaim as ordered on 10th April 2025. 8.The plaintiff opposed the motion through very lengthy grounds of opposition that concisely maintained that: -a.The motion is res judicata, the same being the very question under the defendants’ paragraph 1 of the notice of preliminary objection (PO) dated 15th July 2024 that was heard and determined on 4 March 2025 and has never been reviewed or appealed against.b.The oversight on referencing the wrong land parcel no. is a technical issue that can be remedied on amendment of the plaint.c.As per the defence and counterclaim, the plaintiff’s pleadings inadvertently reference the suit property as the subject matter in dispute, instead of Mavoko Town Block Number 2/142 (subdivided into Mavoko Town Block 2/27699, 2/27700, 2/27701, 2/27702, 2/27703, 2/27704, 2/27705, 2/27706, 2/27707, 2/27708, 2/27709, 2/27710, 2/27711, 2/27712, 2/27713, 2/27714, 2/280 69, 2/28071, 2/28073, 2/28074 and 2/28075) in which the plaintiff is in occupation of.d.That a dismissal of the plaint will leave a determination of the counterclaim in limbo.e.The plaintiff has since filed her reply to the defendant’s defence and defence to counterclaim dated 9th February 2026. 9.This court directed the parties to canvass the various motions through comprehensive written submissions, limiting the submissions to a maximum of five pages. The plaintiff, however, contravened the court's directives, with his law firm on record, Ms. Nzaku & Nzaku, submitting separate and lengthy submissions dated 20 and 21 April 2026. Concerning the supplementary affidavit filed by the plaintiff on 28 April 2026, the court finds that it was filed out of time, as the court had previously extended deadlines for various parties, the last of which was a 14-day period commencing 11 February 2026. No further extension has been granted, and it would be prejudicial to entertain this document, which was filed after the matter had been reserved for ruling, without affording the defendants an opportunity to respond. In light of these circumstances and pursuant to the decision of the Supreme Court of Kenya in Kenya Airports Authority v Otieno, Ragot & Company Advocates [2023] KESC 104 (KLR), these submissions and supplementary affidavit are hereby expunged from the record. 10.In compliance with court directions, the 3rd defendant’s law firm on record, Ms. Naikuni Ngaah & Miencha Co. Advocates, filed written submissions dated 16 April 2026, which frame the following issues for determination; i) whether the plaintiff’s grounds of objection are merited; ii) whether the plaintiff’s notice of motion dated 8th July 2024 and the suit as framed disclose any reasonable cause of action against the 3rd defendant; and c) whether the 3rd defendant is improperly joined in these proceedings. The other defendants did not file written submissions. Accordingly, having carefully considered the motions, grounds, affidavits, grounds of opposition, rival submissions, the legal framework, and prevailing jurisprudence, including that relied upon by the 3rd defendant’s counsel, the succinct issues for determination are: a) whether the plaint discloses a reasonable cause of action against the defendants; b) if not, whether an amendment can cure the defects; c) whether it is permissible for a counterclaim to introduce a new cause of action; and, d) whether the plaintiff has met the legal threshold to warrant the grant of injunctive orders. 11.Before proceeding further, it is imperative to address the preliminary issue of res judicata, as articulated in the grounds of opposition. The court has had an opportunity to examine the PO that formed the basis of its decision in Muinde v Mwania & 2 others [2025] KEELC 984 (KLR) (in this case), and finds itself unable to comprehend the arguments advanced by the plaintiff. The court concurs with the 3rd defendant's position, as, in its previous decision, it considered only the legal issue of the court's jurisdiction to hear and determine disputes concerning matrimonial property, and no other matters were addressed therein. This issue has not been re-urged in the 1st defendant’s motion; consequently, it cannot be treated as res judicata. This ground fails. We now proceed to address the issues for determination sequentially, but ground (a) and (b) shall be handled together. Whether the plaint discloses a reasonable cause of action against the defendants; if not, whether an amendment can cure the defects 12.Regarding this issue, the prevailing legal framework on the drawing and framing of pleadings is found in our Orders 2 Rule 15 (1) (a), 3 Rule 4, and 4 Rule (1) (f) of the Civil Procedure Rules (CPR), which require a plaintiff in every suit to include her entire claim regarding the cause of action, and if the claim fails to disclose a reasonable cause of action, the court may order the striking out of the pleadings or an amendment. 13.This court’s interpretation of Orders 2, 3, and 4 of the Civil Procedure Rules (CPR) is that pleadings serve to disclose the mutual disagreements between the parties involved, typically documented through a recital of facts in accordance with legal standards. Significantly, the claimant's statement of claim enhances the cause of action by setting forth pertinent facts, outlining the circumstances of occurrence, including time and place, explicitly revealing the nature of the cause of action, demonstrating the injuries incurred, and informing the court of its jurisdiction as well as the reliefs sought. 14.Regarding the definition of a cause of action, the Court of Appeal decision in Attorney General & Ministry of State for Immigration & Registrar of Persons v Andrew Maina Githinji & Zachary Mugo Kamunjiga [2016] KECA 817 (KLR) states that it is an act by the defendant that gives the plaintiff a cause of complaint. 15.On preliminary review, the plaintiff’s plaint dated 8 July 2024 appears to satisfy all legal requirements by disclosing a reasonable cause of action against the defendants concerning the suit property. However, a significant issue has arisen: the 3rd defendant asserts that it is a stranger to the suit property; the 1st defendant contends that the suit property belongs to strangers to these proceedings; and the plaintiff concedes that her claim, although purportedly relating to matrimonial property, does not concern the suit property itself but rather pertains to L.R. Mavoko Town Block 2/142-subdivided into several parcels, including 2/27699 through 2/28075, referred to collectively as block 2/142. The plaintiff describes this discrepancy as a technical matter that can be rectified through an amended plaint. She has accordingly filed an application seeking to amend her plaint dated 9 February 2026, which is yet to be heard and determined; nonetheless, upon review, it reveals that her claim will no longer centre on the original suit property but rather on block 2/142. In other words, no cause of action validly arises against the defendants concerning the suit property. This court so finds. We turn to the 2nd limb of this issue. 16.Though the plaintiff contends that this is technical, that cannot be so, as Order 4, Rule 3 explicitly states that where the subject matter of the suit is immovable property, as in this case, the plaint shall contain a description of the property sufficient to identify it. The defendants identified the suit property as stated in the plaint and have distanced themselves from it. Indeed, the green card reveals that the suit property initially belonged to the 1st defendant’s father and, upon probate proceedings over his estate, was transferred to the 1st defendant on 10 December 2007. The 1st defendant then transferred it to Shirika Housing Co-operative Society Ltd on 25 January 2008, which subdivided it into LR. nos. 11551-11625 on 15 January 2009. 17.In agreement with the plaintiff, Order 8 Rules 3 and 5 allow this court to allow 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. Rule 8 provides as follows: -“(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.” 17.Concerning amendments that reflect new causes of action, Order 8, Rule 3 (5) states: -“(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.” 18.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 Bullen and Leake & Jacob's Precedents of Pleading, 12th Edition, A.B. SHAH (JA), in the Court 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..” Emphasis added. 19.As earlier stated, the application for amendment of the plaint was made with undue delay, long after the court had given directions on the disposal of the two motions that are the subject of this ruling and appear to have been made with the intention to forestall the disposal of the 1st defendant's motion. 20.While acknowledging that striking out of cases is a draconian measure and should be employed only in exceptional circumstances, this court is not convinced that an amendment can rectify the defects in the plaint, which lacks a cause of action against the defendants, as none of them has an interest in the suit property, which the plaintiff has alluded to. 21.In this court’s humble view, the new parcel numbers that the plaintiff seeks to introduce into these proceedings cannot remedy the deficiencies in the plaint, as block 2/142 is a distinct parcel of land from the suit property. It is noteworthy that previous orders issued by this court, particularly of status quo maintenance and the lists of documents, particularly the green card and title document, pertain to the suit property and not to block 2/142, and this is not a mere typographical or technical error as contended, but a substantive issue that goes to the root issue for determination. 22.Any proposed amendment to introduce a new parcel of land would necessarily involve asserting new causes of action that are of a different character from, or incompatible with, the original cause of action, as they would entirely deal with unrelated matters due to the absence of any nexus between the suit property and block 2/142, whether by registration, location, or subdivision. The only conceivable nexus is that these parcels may at different times have been registered in the name of the 1st defendant. Being a new parcel, it is evident that new facts will arise. 23.Although this court recognises and empathises with the plaintiff’s apparent uncertainty concerning the precise location of her alleged matrimonial home and acknowledges that her efforts to identify the relevant parcel of land, nonetheless, it is evident that her claim does not pertain to the suit property. Therefore, this court finds that the defects in the plaint cannot be cured by introducing an entirely new parcel of land unrelated to the suit property. Whether it is permissible for a counterclaim to introduce a new cause of action 24.Accordingly, upon being served with a plaint, it is expected that the defendants in this matter would file their defence and, if necessary, a counterclaim in accordance with Order 7 Rules 1, 3, 4, 5, 8, and 12 of the Civil Procedure Rules (CPR). Of particular interest is Order 7, Rule 3, which provides that: -“A defendant in a suit may set-off, or set-up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and whether it is for a liquidated or unliquidated amount, and such set-off or counterclaim shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit, both on the original and on the cross-claim; but the Court may on the application of the plaintiff before trial, if in the opinion of the court such set-off or counterclaim cannot be conveniently disposed of in the pending suit, or ought not to be allowed, refuse permission to defendant to avail himself thereof.” 25.In considering this proviso, the Court of Appeal in County Government of Kilifi v Mombasa Cement Limited [2017] KECA 633 (KLR) stated: -“In our view, a plain reading of the above provision allows or gives a defendant in a suit permission or a carte blanche, to raise a counterclaim based on any right or claim against a plaintiff. That provision says nothing to the effect that such counterclaim must be related to the original subject matter of the suit and neither does it attract such an implication. That position is supported by Halsbury’s Laws of England, Fourth Edition, vol. 42, which defines a counterclaim as follows:-“When A has a claim of any kind against B and brings an action to enforce that claim, and B has a cross-claim of any kind against A which by law he is entitled to raise and have disposed of in the action brought by A, then B is said to have a right of counterclaim.”[Emphasis added].Further that,“Any claim in respect of which the defendant could bring an independent action against the plaintiff may be enforced by counterclaim subject only to the limitation that it must be such as can conveniently be tried with the plaintiff’s claim. Thus not only claims for money but also other claims such as a claim for an injunction or for specific performance or for a declaration may be the subject of a counterclaim.” 26.Based on the above, it is clear that a defendant can raise a counterclaim against a plaintiff for any right or claim, even if it concerns a different subject matter or cause of action from the original suit. The purpose is to prevent multiple proceedings and claims between the parties arising from the same or different causes, thereby allowing the court to issue a final judgment on both the original claim and the counterclaim. However, Order 7 Rule 3 grants the court broad discretion, enabling it to reject a counterclaim if it finds it inconvenient or inappropriate. This extensive discretion means there are many possible reasons a court might deny a counterclaim, and such decisions would be made on a case-by-case basis. 27.It is trite law that such discretion must be exercised judicially and never capriciously or whimsically. Having considered the counterclaim which introduces new parcels of land district from the suit property, to wit, Block 2/27702, 27703, 27704, 27705, 27709, 27710, 27711, 27712 (15.75 acres out of Mavoko Town Block 2/27714) and Mavoko Town Block 2/28069, 28071, 28073, 28074 and 28075, and also all these parcels of land are mentioned in the intended amended plaint as subdivisions of block 2/142, this court finds that having found that the plaintiff’s incompetent and is constrained from amending her plaint to introduce block 2/142, it would be inconvenient and not in the interests of justice to entertain the counterclaim in these circumstances. These findings render a determination of the last issue unnecessary. 28.In the end, the application dated 8 July 2024 is found not merited, while the one dated 19 August 2025 is found merited. In issuing the final disposal orders, the plaintiff’s entire suit and the defendant’s counterclaim are hereby struck out. For reasons, the plaintiff and the 1st defendant may be husband and wife; each party shall bear their respective costs of the suit, counterclaim, and various applications. Liberty is granted to the parties. This file is hereby marked as closed. Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 9TH DAY OF JUNE, 2026.HON. A. Y. KOROSSJUDGE09.06.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Miss Angote holding brief for Mr. Nzaka for plaintiff/applicant.Mr. Mbindyo for 1st and 2nd defendants.