1. Before this Court is an Application dated 11th November 2025 by the Plaintiffs, seeking leave to amend their Plaint to add new parties to the suit, namely, the National Land Commission and the National Housing Corporation, as well as the respective nature of the claims against the added parties.
2. The Application is supported by the affidavit of the 1st Plaintiff, in which he deposed that the suit land on which the Plaintiffs' houses are situated is public land. By virtue of this, the suit land is public land. He deposed that the National Land Commission must be joined as a necessary party to this suit, as it is the body established by the Constitution to manage public land on behalf of the National & County Governments.
3. He further deposed that the Plaintiffs’ houses situated at Kimathi Estate, Nyeri, which are the subject of this suit, were constructed with public funds by the National Housing Corporation. He therefore feels that the Corporation is a necessary party to this suit for the Court to reach a determination on the issues before it. He annexed a letter from the National Housing Corporation dated 18th February 2004, stating that it had taken over direct management of the estates mentioned, which the Corporation funded.
4. The Defendant filed grounds of opposition dated 17th November 2025. Further, Harry Mathenge, Housing Officer, Department of Lands, Physical Planning and Urban Development at the Defendant, the County Government of Nyeri, swore a replying affidavit in opposition to the present application.
5. He deposed that the Plaintiffs are using the instant application to deliberately delay the hearing and conclusion of this suit, because they are enjoying an injunction order dated 23rd October 2019.
6. He informed the Court that the said Kimathi Estate Houses are erected and standing on title number Nyeri Municipality Block 1/206 registered in the name of the Defendant, the successor to the Nyeri Urban District Council.
7. It is the Defendant’s position that the National Land Commission and the National Housing Corporation, therefore, have no legal or equitable interest in the suit land and the houses erected thereon, and there is no reason to join them as parties in this suit.
8. Further, that the land is not charged to the National Housing Corporation and is free from any encumbrances whatsoever. They pray that the instant application be dismissed with costs.
The Plaintiffs/Applicants Submissions
9. Counsel for the Plaintiffs/Applicants submitted that the Application is brought under the provisions of Order 8 of the Civil Procedure Rules, which provides for the amendment of pleadings with leave of the Court.
10. Relying on the reasons for praying to amend the Plaint, Counsel quoted paragraph 9 of the Defence by the Defendant, which read as follows:
a) the Defendant denies having any plans to allocate Kimathi Estate and the Plaintiffs are put to strict proof thereof as the work of allocating Public Land is rested with the National Land Commission.
11. They therefore submit that the Defendant is admitting that the land that is the subject of this suit is public land whose allocation is vested with the National Land Commission.
12. Counsel invited the Court to find that the National Land Commission has a stake in the land as the Defendant holds the same in trust for the people residents in the County, quoting Article 62 (2) of the Constitution of Kenya.
13. Secondly, on the amendment of the Plaint to enjoin the National Land Housing corporation, Counsel referred the letter dated 18th February 2004 marked as Exhibit 2 to their supporting affidavit, which letter is addressed to all Tenants, including the Plaintiffs herein, as Kimathi Rental. The letter informs the Plaintiffs of their intention to join the said party, which, according to the letter, is a major stakeholder in the houses occupied by the Plaintiffs, which are the subject of this suit.
14. It is their submission that the Defendant should not to appear to speak on behalf of the Intended Parties to be joined as they will each present their defences against the allegations in the draft amended plaint and prayed that the application be allowed.
The Defendant/Respondent’s Written Submissions
15. Counsel for the Respondent/Defendant referred to the certificate of official search attached to their replying affidavit for Title Number Nyeri Municipality Block I/206, where Kimathi Estate stands, and rental houses have been erected, which shows that the land is registered in the name of the Defendant with no encumbrances whatsoever.
16. It is their submission that the National Land Commission and the National Housing Corporation, therefore, have no legal or equitable interest in the land or in the houses erected and standing thereon.
17. Counsel cited the authority of M'mwenda & Another v Mire (2024) Kea 1257 (KLR), where the Court found that the essence of allowing joinder of a party to any proceedings is for the court to achieve the ultimate goal of rendering a conclusive determination of the real issues in controversy.
18. They also relied on the authority of Yawa & 35001 Others vs Chome (suing as the administrator of the Estate of Mumba Chome Ngala) (deceased) and 19 Others (Civil Application No. 100 of 2018) KECA 35 KLR, where the Court determined that the joinder of intended parties would not make this Court achieve the ultimate goal of rendering conclusive determination of the real issues in controversy.
19. It is therefore their submission that the two have no interest in the suit land and no right of theirs will be affected if not added as parties. They prayed that the Court should hold that, without their presence, the question in this suit would be completely and effectually decided.
20. They submit that joinder would be a waste of time, would prejudice the Defendant by further delaying the suit, and bring confusion in the suit and vex the Defendant, and pray that the instant application be dismissed.
Analysis and Determination
21. The instant application herein seeks to amend the Plaint dated 6th April 2016 by enjoining the National Land Commission and the National Housing Corporation as Defendants.
22. Order 8 of the Civil Procedure Rules (2010) provides for the amendment of pleadings. Order 8(1) provides that;
“A party may, without the leave of the court, amend any of his pleadings once at any time before the pleadings are closed.”
23. Order 8 Rule 3 provides for amendment of pleadings with leave of the court, which is what the Applicants herein have sought, and provides that:
“Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.”
24. In Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] eKLR, the Court held that:
“……The overriding consideration in application for such leave is whether the amendments are necessary for the just determination of the controversy between the parties. Likewise, mere delay is not a ground for declining to grant leave. It must be such delay as is likely to prejudice the opposite party beyond monetary compensation in costs……Hence the guiding principle in applications for leave to amend is that all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs (see, Beoco Ltd v. Alfa Laval Co. Ltd [1994]4 ALL ER. 464)……….”
25. In my view, the Applicants have adequately explained the reason for the need to amend their pleadings as to join two more defendants, the National Land Commission and the National Housing Corporation. Article 67(2)(a) of the Constitution stipulates that:
“The functions of the National Land Commission are—
(a) to manage public land on behalf of the national and county governments.”
26. The current sole Defendant herein, the County Government of Nyeri, has confirmed that the title to the suit land, Nyeri Municipality Block 1/206, is registered in the name of the now defunct Nyeri Urban District Council, which the County Government took over from. Thus, they have confirmed that the suit land is public land, the management of which lies with the National Land Commission.
27. As for the National Housing Corporation, the Plaintiffs/Applicants have annexed to their affidavit in support of the suit, marked as annexure ‘JMM2’, a letter from the National Housing Corporation dated 18th February 2004, stating that it has taken over direct management of the estates mentioned, which were funded by the Corporation, but whose loan remains outstanding from the defunct Council. The Plaintiffs have averred in their draft amended Plaint that they were at one time paying rent to the said Corporation.
28. None of the parties has made the Court aware of whether the stated loan is now fully paid off. If the same remains outstanding, the National Housing Corporation is a party with a stake in the suit land; it is a necessary party.
29. The Court of Appeal in Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR cited and relied upon by the Respondent, where it was held as such:
“In the case of Gurtner vs Circuit (1968) I All ER 328 it was held that, a party may be enjoined if he can demonstrate that any order in the action would directly affect him either legally or financially. (Denning, M.R.) stated thus:
“…The bureau clearly had a commercial interest in resisting the declaration; but that is not enough. John Stephenson J accepted the analysis of the rule and the many previous decisions under it contained in the exhaustive judgment of Devlin, J., in A Amon vs Raphael Tuck & Sons, Ltd. (1956) 1 All ER 273, and took the view that the court had no jurisdiction to add a party against the will of the plaintiff unless the person seeking to be added was:
“…at least able to show that some legal right enforceable by him against one of the parties to the action or some legal duty enforceable against him by one of the parties to the action will be affected by the result of the action…”
…The only reason which makes it necessary to make a person a party to an action is so that he may be bound by the result of the action, and the question to be settled therefore, must be a question in the action which cannot be effectively and completely settled unless he is a party…”
30. Therefore, my view is that the two parties are necessary for the effective and complete settlement of the suit, and that the amendment should be allowed. However, because the suit is an old matter, the hearing should be expedited in the interest of justice to avoid further delay.
31. Costs in the cause.
Ruling Dated, Signed, and Delivered at Nyeri on this 13th day of May 2026.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Kibicho for the Applicant
Ms. Njuguna for the Respondent
Kendi: Court Assistant
2. The Application is supported by the affidavit of the 1st Plaintiff, in which he deposed that the suit land on which the Plaintiffs' houses are situated is public land. By virtue of this, the suit land is public land. He deposed that the National Land Commission must be joined as a necessary party to this suit, as it is the body established by the Constitution to manage public land on behalf of the National & County Governments.
3. He further deposed that the Plaintiffs’ houses situated at Kimathi Estate, Nyeri, which are the subject of this suit, were constructed with public funds by the National Housing Corporation. He therefore feels that the Corporation is a necessary party to this suit for the Court to reach a determination on the issues before it. He annexed a letter from the National Housing Corporation dated 18th February 2004, stating that it had taken over direct management of the estates mentioned, which the Corporation funded.
4. The Defendant filed grounds of opposition dated 17th November 2025. Further, Harry Mathenge, Housing Officer, Department of Lands, Physical Planning and Urban Development at the Defendant, the County Government of Nyeri, swore a replying affidavit in opposition to the present application.
5. He deposed that the Plaintiffs are using the instant application to deliberately delay the hearing and conclusion of this suit, because they are enjoying an injunction order dated 23rd October 2019.
6. He informed the Court that the said Kimathi Estate Houses are erected and standing on title number Nyeri Municipality Block 1/206 registered in the name of the Defendant, the successor to the Nyeri Urban District Council.
7. It is the Defendant’s position that the National Land Commission and the National Housing Corporation, therefore, have no legal or equitable interest in the suit land and the houses erected thereon, and there is no reason to join them as parties in this suit.
8. Further, that the land is not charged to the National Housing Corporation and is free from any encumbrances whatsoever. They pray that the instant application be dismissed with costs.
The Plaintiffs/Applicants Submissions
9. Counsel for the Plaintiffs/Applicants submitted that the Application is brought under the provisions of Order 8 of the Civil Procedure Rules, which provides for the amendment of pleadings with leave of the Court.
10. Relying on the reasons for praying to amend the Plaint, Counsel quoted paragraph 9 of the Defence by the Defendant, which read as follows:
a) the Defendant denies having any plans to allocate Kimathi Estate and the Plaintiffs are put to strict proof thereof as the work of allocating Public Land is rested with the National Land Commission.
11. They therefore submit that the Defendant is admitting that the land that is the subject of this suit is public land whose allocation is vested with the National Land Commission.
12. Counsel invited the Court to find that the National Land Commission has a stake in the land as the Defendant holds the same in trust for the people residents in the County, quoting Article 62 (2) of the Constitution of Kenya.
13. Secondly, on the amendment of the Plaint to enjoin the National Land Housing corporation, Counsel referred the letter dated 18th February 2004 marked as Exhibit 2 to their supporting affidavit, which letter is addressed to all Tenants, including the Plaintiffs herein, as Kimathi Rental. The letter informs the Plaintiffs of their intention to join the said party, which, according to the letter, is a major stakeholder in the houses occupied by the Plaintiffs, which are the subject of this suit.
14. It is their submission that the Defendant should not to appear to speak on behalf of the Intended Parties to be joined as they will each present their defences against the allegations in the draft amended plaint and prayed that the application be allowed.
The Defendant/Respondent’s Written Submissions
15. Counsel for the Respondent/Defendant referred to the certificate of official search attached to their replying affidavit for Title Number Nyeri Municipality Block I/206, where Kimathi Estate stands, and rental houses have been erected, which shows that the land is registered in the name of the Defendant with no encumbrances whatsoever.
16. It is their submission that the National Land Commission and the National Housing Corporation, therefore, have no legal or equitable interest in the land or in the houses erected and standing thereon.
17. Counsel cited the authority of M'mwenda & Another v Mire (2024) Kea 1257 (KLR), where the Court found that the essence of allowing joinder of a party to any proceedings is for the court to achieve the ultimate goal of rendering a conclusive determination of the real issues in controversy.
18. They also relied on the authority of Yawa & 35001 Others vs Chome (suing as the administrator of the Estate of Mumba Chome Ngala) (deceased) and 19 Others (Civil Application No. 100 of 2018) KECA 35 KLR, where the Court determined that the joinder of intended parties would not make this Court achieve the ultimate goal of rendering conclusive determination of the real issues in controversy.
19. It is therefore their submission that the two have no interest in the suit land and no right of theirs will be affected if not added as parties. They prayed that the Court should hold that, without their presence, the question in this suit would be completely and effectually decided.
20. They submit that joinder would be a waste of time, would prejudice the Defendant by further delaying the suit, and bring confusion in the suit and vex the Defendant, and pray that the instant application be dismissed.
Analysis and Determination
21. The instant application herein seeks to amend the Plaint dated 6th April 2016 by enjoining the National Land Commission and the National Housing Corporation as Defendants.
22. Order 8 of the Civil Procedure Rules (2010) provides for the amendment of pleadings. Order 8(1) provides that;
“A party may, without the leave of the court, amend any of his pleadings once at any time before the pleadings are closed.”
23. Order 8 Rule 3 provides for amendment of pleadings with leave of the court, which is what the Applicants herein have sought, and provides that:
“Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.”
24. In Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] eKLR, the Court held that:
“……The overriding consideration in application for such leave is whether the amendments are necessary for the just determination of the controversy between the parties. Likewise, mere delay is not a ground for declining to grant leave. It must be such delay as is likely to prejudice the opposite party beyond monetary compensation in costs……Hence the guiding principle in applications for leave to amend is that all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs (see, Beoco Ltd v. Alfa Laval Co. Ltd [1994]4 ALL ER. 464)……….”
25. In my view, the Applicants have adequately explained the reason for the need to amend their pleadings as to join two more defendants, the National Land Commission and the National Housing Corporation. Article 67(2)(a) of the Constitution stipulates that:
“The functions of the National Land Commission are—
(a) to manage public land on behalf of the national and county governments.”
26. The current sole Defendant herein, the County Government of Nyeri, has confirmed that the title to the suit land, Nyeri Municipality Block 1/206, is registered in the name of the now defunct Nyeri Urban District Council, which the County Government took over from. Thus, they have confirmed that the suit land is public land, the management of which lies with the National Land Commission.
27. As for the National Housing Corporation, the Plaintiffs/Applicants have annexed to their affidavit in support of the suit, marked as annexure ‘JMM2’, a letter from the National Housing Corporation dated 18th February 2004, stating that it has taken over direct management of the estates mentioned, which were funded by the Corporation, but whose loan remains outstanding from the defunct Council. The Plaintiffs have averred in their draft amended Plaint that they were at one time paying rent to the said Corporation.
28. None of the parties has made the Court aware of whether the stated loan is now fully paid off. If the same remains outstanding, the National Housing Corporation is a party with a stake in the suit land; it is a necessary party.
29. The Court of Appeal in Civicon Limited v Kivuwatt Limited & 2 others [2015] eKLR cited and relied upon by the Respondent, where it was held as such:
“In the case of Gurtner vs Circuit (1968) I All ER 328 it was held that, a party may be enjoined if he can demonstrate that any order in the action would directly affect him either legally or financially. (Denning, M.R.) stated thus:
“…The bureau clearly had a commercial interest in resisting the declaration; but that is not enough. John Stephenson J accepted the analysis of the rule and the many previous decisions under it contained in the exhaustive judgment of Devlin, J., in A Amon vs Raphael Tuck & Sons, Ltd. (1956) 1 All ER 273, and took the view that the court had no jurisdiction to add a party against the will of the plaintiff unless the person seeking to be added was:
“…at least able to show that some legal right enforceable by him against one of the parties to the action or some legal duty enforceable against him by one of the parties to the action will be affected by the result of the action…”
…The only reason which makes it necessary to make a person a party to an action is so that he may be bound by the result of the action, and the question to be settled therefore, must be a question in the action which cannot be effectively and completely settled unless he is a party…”
30. Therefore, my view is that the two parties are necessary for the effective and complete settlement of the suit, and that the amendment should be allowed. However, because the suit is an old matter, the hearing should be expedited in the interest of justice to avoid further delay.
31. Costs in the cause.
Ruling Dated, Signed, and Delivered at Nyeri on this 13th day of May 2026.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Kibicho for the Applicant
Ms. Njuguna for the Respondent
Kendi: Court Assistant