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ELCAllowedEnvironment & Land Petition 11 of 2022· [2023] KEELC 20418 (KLR)

Kahia Transporters Limited v Cabinet Secretary, Ministry of Lands & Physical Planning & 4 others; Lola & 1385 others (Interested Parties)

Environment and Land Court of Kenya
28 September 2023
9,660 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed Kahia Transporters to amend its land petition to claim Kshs. 21 billion, ruling amendments should be freely allowed unless they cause prejudice.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (L.L. Naikuni, J) determined a Notice of Motion dated 10th May 2023 by Kahia Transporters Limited, the Petitioner, seeking leave under Rule 18 of the Mutunga Rules to amend its Petition dated 15th March 2022. The Petitioner, registered proprietor of L.R. No. 32095 (446.2 Ha) and L.R. No. 37122 (404.7 Ha) acquired in 2019, alleged that the Respondents created the Maji ya Chumvi Settlement Scheme and issued overlapping titles in contempt of interim orders of 15th March 2022, rendering its Petition for restraint redundant. It sought to amend to plead a constructive compulsory acquisition and claim compensation of approximately Kshs. 21 billion based on fresh valuations. The Respondents and Interested Parties opposed, contending the land was Trust Land converted to community/private land through a completed adjudication process, that the Petitioner's lease signed by a Land Registrar was a nullity under Articles 62(2) and 40(6) of the Constitution and Sections 12 and 23(2) of the Land Act, and that the court had already ruled on 18th July 2022 that it lacked jurisdiction over the adjudication process. The court framed three issues and held that amendments should be freely allowed at any stage absent prejudice, that no party demonstrated prejudice, and that objections going to the validity of the Petitioner's title were premature matters for trial. The application was allowed, with corresponding leave for the Respondents and Interested Parties to file amended responses within 14 days, the amended petition to be heard on 6th March 2024, and each party to bear its own costs.

Key legal issues

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01

Whether leave to amend the Petition should be granted under Rule 18 of the Mutunga Rules

Holding

Leave was granted; the amendment was made in good faith, was necessary for the full and substantive determination of the matter, and no party demonstrated any prejudice it would suffer

Reasoning

The court applied Rule 18 of the Mutunga Rules and the line of authorities holding that amendments should be freely allowed at any stage unless they occasion prejudice, are made in bad faith, or affect vested interests. None of the respondents or interested parties demonstrated what prejudice would result. The court held the opposition was premature because issues such as the validity of the Petitioner's title and the alleged forgery of the lease go to the merits and require evidence at trial.

p. 16
02

Whether the objections by the Interested Parties (nullity of title, lack of jurisdiction over adjudication, prior rulings) could defeat the amendment

Holding

The objections were premature; they raise issues for trial requiring evidence and cross-examination, and the prior Consent Order argument did not bear on an application to amend

Reasoning

The Interested Parties argued the Petitioner's titles were nullities because the lease was signed by a Land Registrar rather than the National Land Commission, and that the court lacked jurisdiction over the adjudication process. The court held these were competing accounts going to the merits of the substantive suit, to be determined after evidence is called, and that the amendment did not alter the cause of action.

p. 16
03

Costs of the application

Holding

Although the Petitioner succeeded, each party was ordered to bear its own costs given the matter was still to proceed to full hearing

Reasoning

The court noted that costs follow the event under Section 27(1) of the Civil Procedure Act, but exercised its discretion to order each party to bear its own costs because the substantive petition remained pending before the court.

p. 16

Legal principles established

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  • A party may amend its pleadings, including a petition, at any stage of the proceedings with the leave of the court, so long as the amendment does not prejudice the opposing party
  • Frivolity of a suit goes to its merits and is best determined on evidence adduced, not at the stage of an application to amend

Court orders

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  1. 1.The Notice of Motion Application dated 10th May, 2023 and the amendment of the Petition be and is hereby allowed
  2. 2.The Petitioner/Applicant to file and serve the amended petition on the Respondents and Interested Parties upon payment of requisite court fees within seven (7) days from the date of delivery of the Ruling
  3. 3.Upon service, corresponding leave granted to the Respondents and Interested Parties to file and serve Amended Responses to the Petition within 14 days
  4. 4.The Amended Petition to be fixed for hearing on 6th March, 2024 through viva voce evidence, with a mention on 17th January, 2024 for confirmation of compliance and pre-trial directions
  5. 5.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 40(6)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 25(c)
  • Constitution of Kenya, 2010Article 62(2)
  • Constitution of Kenya, 2010Article 63
  • Constitution of Kenya, 2010Article 10(2)(a), (b) and (c)
  • Constitution of Kenya, 2010Article 3
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 18
  • Land Registration Act
  • Land ActSections 12 and 23(2)
  • Land Adjudication Act, Cap. 284Section 5
  • Civil Procedure Act, Cap. 21Section 27(1)
  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (16)

  • Gladys Nduku Nthuki vs Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff)

    Threshold for allowing amendment; leave to amend freely granted unless mala fides or uncompensatable injury

  • Tidelsay vs. Harpic
    [1878] 10 CH.D. 393

    Practice is to give leave to amend unless mala fide or injury not compensable by costs

  • British India General Insurance Co. Ltd vs. G.M. Parmar
    [1966] EA 172

    Amendments before hearing should be freely allowed if no injustice, injustice being curable by costs

  • Channah Singh Santa Singh vs Agricultural Finance Corp
    [2006] eKLR

    Pleadings may be amended at any stage, even during trial, if necessary for due determination of issues

  • Florence Nyaboke Machani – Versus - Mogere Amosi Ombui & 2 others
    Civil Appeal 184 of 2011 [2014] eKLR

    A valid court judgment remains enforceable unless overturned on appeal, jurisdiction notwithstanding

  • Fred Matiang'i, The Cabinet Secretary, Ministry of Interior and Co-ordination of National Government -vs- Miguna Miguna & 4 Others
    [2018] eKLR

    Court orders are compulsive and binding; no party may choose whether to obey

  • Eunice Wambui Nganga – Versus - Teresia Wanjiku Wainaina
    [2017] eKLR

    Competing titles cannot be determined on affidavit evidence at interlocutory stage; awaits trial

  • Ramji Jethabhai – Versus - Mrs CE Fisher
    Civil Appeal No.5 of 1980

    Weighty issues are better subjected to the test of cross-examination

  • Kenya Commercial Bank Ltd – Versus Specialised Engineering Co. Ltd
    [1982] KLR 485

    Grounds upon which a consent order may be set aside

  • Salim Peter Murithi – Versus - Kasiwa Gona Kirao
    [2021] eKLR

    Adopting the KCB v Specialised Engineering principles on setting aside consent orders

  • Samson Munikah practicing as Munikah & Company Advocates – Versus - Wedube Estates Limited
    Nairobi Civil Appeal No. 126 of 2005

    Circumstances in which a consent judgment can be set aside

  • Shollei – Versus - Judicial Service Commission & another
    (Petition 34 of 2014) [2022] KESC 5 (KLR) (17 February 2022)

    Right to fair hearing under Article 50(1), its non-derogable status and natural justice content

  • Humanity Action Knowledge Integrity in Africa Trust (Haki Africa) & 19 others – Versus - Attorney General & 3 others; Kenya National Commission on Human Rights (KNHCR) & 2 others (Interested Parties)
    [2020] eKLR

    Rule 18 Mutunga Rules as starting point; amendment allowed unless frivolous or prejudicial

  • Mombasa Cement Limited – Versus - Speaker of the National Assembly & 2 others
    [2016] eKLR

    Amendments ought to be freely allowed so long as they occasion no prejudice

  • Geyser International Assets Limited – Versus - Attorney General & 3 Others
    [2019] eKLR

    Amendments allowed where necessary to determine real issues; conditions of no delay, no vested interest, no injustice

  • Lalo Lugwe Lalo Lugwe & 227 Others – Versus - Farida Koroney & Others
    Mombasa ELC No. 46 of 2019

    History and creation of Maji Ya Chumvi Adjudication Section over the same suit property

Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya, 2010 and Rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Kahia Transporters Limited v Cabinet Secretary, Ministry of Lands & Physical Planning & 4 others; Lola & 1385 others (Interested Parties)", Case Analysis (2023). Environment & Land Petition 11 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20418/eng@2023-09-28

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