Milly Glass Works Limited v Kenya Railways Corporation & Another (Environment & Land Case 135 of 2012) [2020] KEELC 1487 (KLR)
The bottom line
#Kenya's Environment and Land Court refused a plaintiff's last-minute attempt to add a refund claim after both sides had finished presenting evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to amend a plaint may be granted after both parties have closed their cases
Leave refused. Although Order 8 Rule 3 permits amendment at any stage, a substantial amendment after closure of evidence carries a high probability of prejudice because the opposing party would need to re-open its case; special circumstances are required, and none exist here.
The court acknowledged the liberal approach to amendments but held that the further a matter has progressed, the harder an amendment is to obtain. Here both sides had closed their cases; the amendment sought (a refund claim based on payments made since 2013) is substantial and would require reopening evidence on what was paid. The plaintiff had known of the issue for seven years, could have amended before testifying in 2015, and was guilty of laches. No prejudice to the plaintiff arises as it can file a fresh suit for a refund.
Whether the plaintiff would be prejudiced if leave to amend were denied
No prejudice: if the plaintiff succeeds in the suit, it can sue separately for a refund of the excess rent paid.
The court found that the plaintiff retains a remedy outside this suit. A fresh suit for refund of monies paid under the revised rent remains available if the court finds the revision was unwarranted. Denial of the amendment therefore does not shut the plaintiff out, and that route is preferable to reopening this eight-year-old suit.
Legal principles established
#- Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs; but an amendment should not be allowed if it causes injustice.
- A substantial amendment sought after parties have closed their cases will rarely be allowed, as it risks prejudice to a party who has closed its case and cannot re-open to meet the new matter; special circumstances must exist.
Court orders
#- 1.The plaintiff's application dated 28 April 2020 seeking leave to amend the plaint is dismissed
- 2.The plaintiff to pay the 1st defendant's costs of the application
- Jurisdiction invoked
- Order 8 Rule 3 of the Civil Procedure Rules (application for amendment of pleadings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Milly Glass Works Limited v Kenya Railways Corporation & Another (Environment & Land Case 135 of 2012) [2020] KEELC 1487 (KLR)", Case Analysis (2020). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1487/eng@2020-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.