https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2960

Ngundo v Mbindyo (Environment and Land Appeal E011 of 2024) [2026] KEELC 2960 (KLR) (18 May 2026) (Judgment) Neutral citation: [2026] KEELC 2960 (KLR) Republic of Kenya In the Environment and Land Court at Makueni Environment and Land Appeal E011 of 2024 EO Obaga, J May 18, 2026 Between Rhoda Nthanze Ngundo Applicant and Richard Mukiti Mbindyo Respondent (Being an appeal from the ruling of Hon. M. W. Kibe, Senior Resident Magistrate delivered on 15th August, 2024 in Makindu ELC Case No. E053 of 2023) Judgment 1.The Appellant had been named as a Defendant in a suit filed by the Respondent in Makindu ELC Suit No. E053 FO 2023. The Appellant filed a notice of motion dated 15th March, 2024 in which she sought to join the estate of her late husband as the 2nd Defendant and that the Plaint be amended accordingly. The Respondent opposed the Appellant’s application. In a ruling delivered on 15th August, 2024, the Appellant’s application was dismissed with costs being in the cause. 2.Dissatisfied with the ruling of 15th August, 2024, the Appellants preferred an appeal to this court in which they raised the following grounds:1.That the learned magistrate erred in fact and in law in failing to find that the 1st and 2nd Appellants herein are two (2) separate and distinct parties in law and entitled to urge and protect their rights independently and distinctly thus the intended joinder of the 2nd Appellant.2.That the learned magistrate erred in fact and in law in failing to determine the application set down grounds and principles for joinder of parties.3.That the learned magistrate erred in fact and in law misapplying the law on joinder of parties thereby arriving at an erroneous decision.4.That the learned magistrate erred in fact and in law in finding that the court cannot order the Respondent to name other parties in his pleadings other than those he intends to name thereby misapplying the law and decided case laws on joinder of parties which bind the court.5.That the learned magistrate erred in fact and in law in finding that he did not have any reason to order the Respondent to amend his plaint and join an intended 2nd Defendant without considering the annexures to the affidavit in support of the application.6.That the learned magistrate erred in law and fact in failing to consider the application and the grounds thereon, the supporting affidavit with the annexures therein before arriving at his ruling.7.That the learned magistrate erred in law and fact in failing to consider the submissions by the Appellants before arriving at his erroneous ruling.8.That the trial learned magistrate erred in law and fact in dismissing the 1st Appellant’s application without sufficient reasons and in clear disregard of the law. 3.The parties were directed to dispose of the appeal by way of written submissions. The Appellants did not file any submissions. The Respondent filed submissions dated 10th November, 2025. 4.I have considered the grounds in the memorandum of appeal as well as the submissions by the Respondent. The duty of an Appellate Court was stated in the case of Selle and Another –vs- Associated Motor Boat Co. Ltd & Others (1968) EA 123 as follows:“.....An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either it has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence of if the impression based on the demeanor of a witness is inconsistent with the evidence in the cases generally”. 5.The Respondent had filed a suit against the 1st Appellant in which he among others sought an eviction order, special damages of Kshs.2,109,600/=, general damages for trespass and removal of a caution lodged by the 1st Appellant on property number Mbitini/Ngetha/452. 6.The 1st Appellant’s husband Jairus Ngundo Kituku had leased a portion measuring about 2½ acres from the Respondent. The 1st Appellant’s husband later expressed his intention to purchase the 2½ acres. However, before the 1st Appellant’s husband could firm up the intention to purchase, he passed away. The Respondent tried to ask the 1st Appellant to purchase the 2½ acres but she could not purchase the 2½ acres hence the filing of the suit. 7.The only issue for determination in this appeal is whether the trial magistrate was wrong in dismissing the application for joinder of the estate of her late husband. I have looked at the submissions by the 1st Appellant before the lower court in support of the application dated 15th March, 2024. The 1st Appellant had contended that her late husband had purchased 3 acres out of the land owned by the Respondent through a series of agreements made by her deceased husband between 1994 and 1997. 8.Order 1 Rule 10 (2) of the Civil Procedure Rules provide as follows:“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”. 9.In the case of Meme –vs- Republic (2004) 1 KLR 124 the principles set out for joinder of a party are:a.Joinder of a person because his presence will result in complete settlement of all questions involved in the proceedings.b.Joinder to provide a protection to a party who would otherwise be adversely affected in law.c.Joinder to prevent a likely course of proliferated litigation. 10.The sale agreements were entered into by the Respondent and the 2nd Appellant. During the hearing before the lower court, the name of the deceased would feature prominently and the only way through which his estate will be protected was by admitting his legal representative as a party. It was therefore wrong for the trial magistrate to state that she did not see the reason why she could order the joinder of the administrator of the estate of the deceased. 11.Order 1 Rule 10 (2) is clear that joinder can even be made on the court’s own motion as long as the joinder will make all issues to effectually and completely be determined. I allow the Appellants’ appeal, set aside the ruling of 15th August, 2024 and in place thereof, I make an order allowing the 1st Appellant’s notice of motion dated 15th March, 2024. The Appellants shall have costs of this appeal. JUDGMENT SIGNED, DATED AND DELIVEREDVIA MICROSOFT TEAMS THIS 18TH DAY OF MAY, 2026.…..............................HON. E. O. OBAGAJUDGEIn The Presence Of:Mr. Wekesa for Mr. Nthiwa for Appellant.Mr. Kasyoka for Respondent.Court assistants Kilonzo and Musyoki