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ELCAllowedNot stated in the judgment (application dated 22/7/2025; ruling of 19/6/2025 referenced)· [2026] KEELC 2676 (KLR)

Lihanda & another v Ayiga & 7 others (Environment and Land Case E010 of 2023) [2026] KEELC 2676 (KLR)

Not expressly named in the judgment (a judge's court sitting at Bungoma; delivered virtually)
28 April 2026
KBK. Bor
754 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an amended plaint because the church filed it late and swapped a plaintiff without asking the court for permission.

What this practically means

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Executive summary

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The 4th Defendant, Rev. Ruth Werunga, applied by notice dated 22/7/2025 to strike out the plaintiff's amended plaint dated 1/7/2025 on the ground that it contravened the court's orders in the ruling of 19/6/2025, which had granted leave to amend the plaint strictly in terms of a draft annexed to an affidavit, within 7 days. Two complaints were raised: first, that the 1st Plaintiff, Patrick Musungu Lihanda, had been substituted with Rev. Kenneth Mbalanya Adiara (the current General Superintendent of the Pentecostal Assemblies of God, Kenya) without leave; and secondly, that the amended plaint was filed outside the 7-day timeline. In a replying affidavit sworn by Karani O. Aggrey, the plaintiff conceded the filing was outside the timeline, attributing the delay to difficulties reaching Nebert Misigo Mudaki in Vihiga for execution of documents and to an electronic court filing system downtime on 11/7/2025, and maintained that no prejudice would be suffered. The plaintiff invoked Article 159 of the Constitution. The 4th Defendant relied on Order 1 Rule 10 of the Civil Procedure Rules, contending that substitution required leave and that a document filed out of time without extension was a nullity. The court found it undisputed that the filing breached the timeline and that the substitution was not contemplated in the permitted amendments; it held that leave to substitute was necessary. The application dated 22/7/2025 was accordingly allowed. The judgment does not record any costs order.

Key legal issues

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Whether the amended plaint filed outside the court-ordered 7-day timeline and substituting a new 1st Plaintiff without leave should be struck out

Holding

Yes. The court found it indisputable that the amended plaint was filed outside the timeline and that the substitution of Rev. Kenneth Mbalanya Adiara as 1st Plaintiff was not contemplated in the amendments allowed; leave for substitution was necessary, and the application to strike out was allowed.

Reasoning

The court revisited its ruling of 19/6/2025, which granted leave to amend strictly in terms of the draft annexed to the supporting affidavit, within 7 days. It found no contest that the amended plaint was filed late and that the substitution of the 1st Plaintiff went beyond the permitted amendments. Order 1 Rule 10 requires leave for substitution, and failure to seek extension of time rendered the filing non-compliant, justifying striking out.

p. 2

Legal principles established

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  • Substitution of a party in a suit requires the leave of the court
  • Where leave to amend is granted subject to a time limit, a party wishing to file outside that limit must first move the court for extension of time

Court orders

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  1. 1.The application dated 22/7/2025 is allowed
  2. 2.Judgment delivered virtually at Bungoma on 28th April 2026
Jurisdiction invoked
Not stated; original civil jurisdiction over a suit and interlocutory application (reference made to Order 1 Rule 10 of the Civil Procedure Rules and Article 159 of the Constitution)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lihanda & another v Ayiga & 7 others (Environment and Land Case E010 of 2023) [2026] KEELC 2676 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 22/7/2025; ruling of 19/6/2025 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2676/eng@2026-04-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.