https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4309

REPUBLIC OF KENYA IN ENVIRONMENT AND LAND COURT AT MERU ELC OS NO. E006 OF 2026 MARTIN MWENDA RINGERA………………………………1ST PLAINTIFF MERCY NGUTA GATOBU ……………………………….. 2ND PLAINTIFF VERSUS ZIPPORAH KAMBURA MUTHOMI……………………….1ST DEFENDANT WHITNEY MUKIRI KIMATHI……………………….……2ND DEFENDANT MUNORU GEORGE MWITI……………………………….3RD DEFENDANT **RULING** 1. The subject matter came up for mention on the 07.07.2026, with a view to confirming whether the parties had filed and exchanged their submissions as pertains to the Notice of Motion application dated the 18.06.2026. Suffice it to state that the said application had been filed by Martin Mwenda Ringera [the 1st Plaintiff herein]. 2. Moreover, it is apposite to state that Martin Mwenda Ringera, was the sole Plaintiff in the matter. Nevertheless, when the matter was called out, the 2nd Plaintiff herein, who is an advocate of the High Court of Kenya, stood up and intimated to the Court that same had filed [sic] an amended Originating Summons dated the 30.06.2026. In addition, the 2nd Plaintiff also posited that same had also filed an amended Notice of Motion Application of even date. 3. Learned counsel for the defendants intimated to the court that there was no way the 2nd Plaintiff could purport to amend the originating summons and to include herself as [sic] 2nd Plaintiff without leave of the court. In addition, learned counsel also pointed out that the 2nd Plaintiff also lacked the capacity to file an amended notice of motion. To this end, learned counsel for the defendants sought to raise an objection to the 2nd plaintiff’s involvement and participation in the subject matter. 4. On her part, the 2nd Plaintiff posited that the subject proceedings are bound to affect her rights and interest[s] in respect of the suit property. In this regard, the 2nd Plaintiff contended that she is therefore a necessary party and hence entitled to be joined in the suit. She added that she had the liberty to amend the originating summons and to include herself as [sic] 2nd plaintiff. 5. Additionally, the 2nd Plaintiff contended that by the time she amended the originating summons and included herself as the 2nd plaintiff, the defendants herein had neither filed any documents in opposition to the suit. Furthermore, the 2nd Plaintiff posited that she had the right to file and amend the originating summons. Besides, the 2nd Plaintiff posited that she did not require leave of the court to amend the originating summons and to join herself as the 2nd plaintiff. 6. Finally, the 2nd Plaintiff submitted that the defendants shall not be disposed to suffer any prejudice, or hardship, if the amended originating summons and the amended notice of motion application are retained and acted upon. The court was invited to disregard procedural technicalities and to allow the 2nd Plaintiff to participate in the proceedings. 7. Learned counsel for the defendants maintained his firm position that the 2nd Plaintiff could not gate crush into the subject matter, which was filed by the Plaintiff [Martin Mwenda Ringera]. Moreover, it was contended that there is a distinction between amendments and addition/substitution of a party. 8. In addition, it was submitted that a person who is not a party to a suit, the 2nd Plaintiff not excepted, cannot purport to amend the pleadings of a party to the suit. In particular, it was submitted that the manner in which the 2nd Plaintiff joined the matter, is highly irregular and unlawful. In short, the court was invited to find and hold that the 2nd Plaintiff has not right of audience before the court. 9. Furthermore, learned counsel for the defendants submitted that the amended originating summons and the amended notice of motion application, both dated the 30.06.2026, ought to be struck out or expunged from the record of the court. 10. Having reviewed the objection by /on behalf of learned counsel for the defendants; upon hearing the submissions by the respective parties; and bearing in mind the provisions of **Order 8 rule 1 of the civil procedure rules, 2010**, as read together with the provisions of **Order 1 Rule 10 of the Civil Procedure Rules, 2010**, three [3] key issues emerge for consideration and determination. The issues are: Whether a person who is not a party can purport to amend pleadings filed by a party or otherwise; Whether a person can join him or herself in a subsisting matter without leave of the court; and What orders ought to be made. 11. Regarding the 1st issue, it is important to recall and reiterate that the subject suit was filed/commenced by Martin Mwenda Ringera, as the sole plaintiff. Furthermore, the said Plaintiff filed a notice of motion application which was the subject of directions by the court on the 29.06.2026. For good measure, the court ordered that the said application be canvassed and disposed of by way of written submissions. 12. Additionally, it is common ground that the Plaintiff in this matter [Martin Mwenda Ringera] has not sort to amend his originating summons. Besides, the named Plaintiff has not indicated his desire to join any other person, either as a co-Plaintiff or otherwise. 13. I also wish to clarify that the purported 2nd Plaintiff was not a party to the suit at the onset. The question that does arise is whether the provision of **Order 8 Rule 1 of the Civil Procedure Rules, 2010,** which allows a party an automatic right to amend pleadings before close of pleadings, can be invoked and relied upon by [sic] a stranger? 14. Before interrogating the right of a stranger to amend pleadings, it is imperative to reproduce the provisions of **Order 8 Rule 1 of the Civil Procedure Rules** [*supra*]. The provisions stipulate thus: ***1. Amendment of pleading without leave [Order 8, rule 1]*** ***(1) A party may, without the leave of the court, amend any of his pleadings once at any time before the pleadings are closed.*** ***(2) Where an amended plaint is served on a defendant—*** ***(a) if he has already filed a defence, the defendant may amend his defence; and*** ***(b) the defence or amended defence shall be filed either as provided by these rules for the filing of the defence or fourteen days after the service of the amended plaint whichever is later.*** ***(3) Where an amended defence is served on a plaintiff—*** ***(a) if the Plaintiff has already served a reply on that defendant, he may amend his reply; and*** ***(b) the period for service of his reply or amended reply is fourteen days after the service on him of the amended defence.*** ***(4) References in subrule (2) and (3) to a defence and a reply include references to a counterclaim and a defence to counterclaim respectively.*** ***(5) Where an amended counterclaim is served on a party (other than the plaintiff) against whom the counterclaim is made, subrule (2) shall apply as if the counterclaim were a statement of claim and as if the party by whom the counterclaim is made were the Plaintiff and the party against whom it is made were a defendant.*** ***(6) Where a party has pleaded to a pleading which is subsequently amended and served on him under subrule (1), then, if that party does not amend his pleading under the foregoing provisions of this rule, he shall be taken to rely on it in answer to the amended pleading, and Order 2 rule 12(2) shall have effect at the expiry of the period within which the pleading could have been amended*** 1. My reading of the provisions of **Order 8 Rule 1 of the Civil Procedure Rules** [*supra*] drives me to the conclusion that it is only a party to the suit, who is granted an automatic right to amend his/her pleadings, before the close of pleadings. The terminology party, denotes a person who either filed the suit, namely; the Plaintiff or the person against whom the suit was filed, namely; the defendant. 2. In the respect of the instant matter, the purported 2nd plaintiff, was not a party. In this regard, the said 2nd Plaintiff cannot jump into the matter; usurp the mandate of a party; and arrogate unto herself the power to amend the originating summons. I wish to add that the said originating summons, which were being amended by [sic] the 2nd Plaintiff are lawfully owned by the plaintiff, who filed same. 3. Surely, the purported 2nd Plaintiff cannot jump into the house belonging to the Plaintiff and thereafter undertake amendments/dismemberment of the originating summons. Simply put, amendment of pleadings belongs to the parties and not strangers. 4. With regard to the second issue, namely; whether the second Plaintiff could join the subject matter without leave of the court or otherwise. I beg to state that there is a distinction between amendments of pleadings and joinder of parties. Whereas amendments of pleadings are regulated by the provisions of **Section 100 of the Civil Procedure Act, Chapter 21 Laws of Kenya**, as read together with **Order 8 of the Civil Procedure Rules,** 2010, joinder of parties on the other hand, is guided by the Provisions of **Order 1 Rule 10 of the Civil Procedure Rules, 2010.** 1. The joinder of a party into a suit, in whatever capacity, requires leave of the court. The leave can issue at the instance or application of the proposed party; or *suo moto* at the instance of the court. Either way, there must be an order of the court decreeing; or allowing joinder of the proposed party. 2. To my mind, a proposed party, the 2nd Plaintiff herein not excepted, cannot walk-in into a subsisting suit without leave. Protocol demands that an appropriate application be made and canvased before the court, to enable the court discern whether sufficient basis has been established to warrant joinder. 3. The provisions of **Order 1 Rule 10 [2] of the Civil Procedure Rules** are apt. The provisions stipulate thus: ***10. Substitution and addition of parties [Order 1, rule 10]*** ***(1) Where a suit has been instituted in the name of the wrong persons as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as Plaintiff upon such terms as the court thinks fit.*** **(2) 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.** ***(3) No person shall be added as a Plaintiff suing without a next friend or as the next friend of a Plaintiff under any disability without his consent in writing thereto.*** ***(4) Where a defendant is added or substituted, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the court thinks fit, on the original defendants.*** 1. I am afraid that the purported 2nd Plaintiff could not ride on the purported amendments to enter into the fray. The purported 2nd Plaintiff needed to approach the court with a suitable application, on notice to all the parties, for consideration and determination. Only then, could the purported 2nd Plaintiff be joined, in whatever capacity. 2. Before concluding on this issue, I beg to reference the holding in the case of **Pravin Bowry v John Ward & another [2015] KECA 215 (KLR),** where the Court of Appeal highlighted the legal position that joinder can only be made pursuant to an order/leave of the court. In addition, the court highlighted the guiding parameters to be established before joinder. 3. The court stated thus: ***“ The exercise of this jurisdiction is pegged upon the discretion of the court in making a determination as to whether the party sought to be added will facilitate the effectual and complete settlement of all the questions in the suit.*** ***This Court sitting at Mombasa in Civicon Limited v. Kivuwatt Limited & 2 others [2015] eKLR (Civil Appeal No. 45 of 2014) identified that the provisions of Order I of the Civil Procedure Rules call for the exercise of discretion and had this to say of the same:*** **“Again the power given under the Rules is discretionary which discretion must of necessity be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter, so that the dispute may be determined in their presence at the time without any protraction, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and proper party, and should be enjoined.”** **[25……..]** **From the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in Order I Rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the practicability of the execution of the order sought in the suit, in the event that the Plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.”** ***The issue was also the subject of consideration by this Court in Meme v. Republic [2004] KLR 637 where it was held that joinder of parties will be permissible:*** **“(i)Where the presence of the party will result in the complete settlement of all the questions involved in the proceedings;** **(ii) Where the joinder will provide protection for the rights of a party who would otherwise be adversely affected in law: and** **(iii) Where the joinder will prevent a likely course of proliferated litigation.”** 1. Turning to the last issue, I wish to state that the purported 2nd Plaintiff proceeded to and filed an amended originating summons and amended notice of motion, albeit without leave of the court. It is trite that where leave of the court is required before the doing of an act, then the leave must be obtained beforehand. In addition, where a document /pleading is filed without leave, then such a document is a *nullity ab initio.* 1. Pleading or document filed without leave of the court cannot be dignified with validation. Such a document must be expunged or struck out from the record of the court. To otherwise, would be tantamount to sanctioning breach of the mandatory provisions of the law. 2. In the case of **Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR),** the Supreme Court considered the legal implication[s] of a pleading filed without leave of the court. 3. The apex court stated thus: **“*Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this court will not accept a document filed out of time without leave of the court. It is unfortunate that Petition No 10 of 2014 has been accorded a reference number in this court’s registry. This is irregular as that document is unknown in law and the same should be struck out.”*** 1. The Supreme Court was discussing the filing of an appeal or purported appeal without leave. However, the ratio [holding] applies with equal force, to any pleading which requires leave, before filing. **Conclusion** 1. The purported 2nd Plaintiff was not a party to the proceedings at the onset. Insofar as the purported 2nd Plaintiff was not a party, same could not jump into the matter and enter the fray, without leave. Moreover, there is no gainsaying that a person, who is not a party, cannot invoke/deploy the provisions of **Order 8 Rule1 of the Civil Procedure Rules** and cause an amendment to pleadings belonging to other parties. 2. The impugned amendments and the filing of the amended originating summons dated the 30.06.2026, was an act in vanity. The amended originating summons was/is a nullity. **Final orders:** 1. In the premises, and bearing in mind the analysis alluded to the in the body to the ruling, the final orders that commend themselves to the court are: * 1. ***The amended Notice of Motion Application dated the 30.06.2026 be and is hereby struck out.*** 2. ***The amended originating summons dated the 30.06.2026 be and is hereby struck out.*** 3. ***The name of Mercy Nguta Gatobu [the purported 2nd plaintiff] be and is hereby expunged from the record.*** 4. ***No orders as to costs.*** 5. ***The said Mercy Nguta Gatobu is at liberty to apply, subject to the law.*** 2. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU ON 07TH JULY, 2026.** **OGUTTU MBOYA; FCIArb; CPM [MTI-EA].** **JUDGE.** In the presence of: Court Assistant: Zakayo Mr. Muriithi for the Defendants. Mercy Nguta Gatobu – 2nd Plaintiff . N/a for the 1st Plaintiff