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ELCDismissedEnvironment and Land Case 520 of 2017· [2023] KEELC 21115 (KLR)

Mbaru & 111 others v Nchoe & others

Environment and Land Court
31 October 2023
CMCG MBOGO
2,401 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Narok court refused 112 land plaintiffs permission to change their lawsuit mid-trial, showing late amendments in Kenyan courts face steep odds.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Narok (CG Mbogo, J) determined a Notice of Motion dated 27th March 2023 by 112 plaintiffs seeking leave to amend their plaint in a long-running land dispute. The plaintiffs, who had occupied the suit land for over 22 years and sued in 2012 to stop wrongful eviction and seek repossession, sought to add paragraphs 13(a) and 17(a) to plead specifically rights of adverse possession said to have crystallised, because the defendants had subdivided the original parcel (CisMara/Olopito/788) during the suit, creating new parcels and necessitating additional prayers. Eleven defendants opposed, arguing the amendment was late (the plaintiffs' case was closed), would introduce a new cause of action, reopen the plaintiffs' case, delay a matter already over ten years old, and amount to a fishing expedition, relying on Kyalo v Bayusuf Brothers, Eastern Bakery v Castelino, Bwana v Said and Tireiti v Lagate. The court framed a single issue: whether the amendment was merited. Reviewing Section 100 of the Civil Procedure Act and Order 8 Rules 3 and 5, and the Eastern Bakery principles as restated in the Institute for Social Accountability case, the court held that although amendments may be allowed at any stage, the discretion must be exercised judicially and refused where injustice or prejudice would result. The application, brought after the plaintiffs closed their case, was held to be late; the failure to plead crystallised rights precisely earlier could not justify amendment. The application was dismissed with costs in the cause and a mention set for 8th November 2023.

Key legal issues

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01

Whether leave to amend the plaint should be granted at a late stage after the plaintiffs closed their case

Holding

The application was refused as it was brought late in the day and would occasion prejudice to the defendants

Reasoning

The court outlined the statutory framework (Section 100 CPA; Order 8 Rules 3 and 5) and the Eastern Bakery principles: amendments may be allowed at any stage but the discretion must be exercised judicially, weighing prejudice. The plaintiffs had closed their case, the failure to plead crystallised rights precisely earlier could not justify amendment, and counsel's earlier oral intimation did not cure the delay. Prejudice to the defendants outweighed the amendment's utility.

p. 5

Legal principles established

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  • Amendment of pleadings may be allowed at any stage of the suit, but it is discretionary and will be refused where it occasions injustice or prejudice to the other party
  • Late amendments are more likely to cause injustice than amendments sought before hearing commences

Court orders

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  1. 1.The notice of motion application dated 27th March, 2023 is dismissed
  2. 2.Costs to be in the cause
  3. 3.Mention on 8th November, 2023 for further directions

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 8 Rules 3 and 5
  • Civil Procedure RulesOrder 11 Rule 3(h)
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (5)

  • Kyalo versus Bayusuf Brothers Limited
    [1983] KLR 229

    Amendments become difficult as the matter progresses or if inconsistent with previous pleadings

  • Eastern Bakery versus Castelino
    [1959] EA 461

    Principles governing the court's discretion to allow amendment of pleadings

  • Bwana versus Said
    [1991] KLR 454

    Proposed amendments introducing a new cause of action would be highly prejudicial

  • Joseph Tireiti versus Jacob Kipsugot Arap Lagate & Another
    [2013] eKLR

    Relied on by defendants regarding prejudice from new causes of action

  • Institute for Social Accountability and Another versus Parliament of Kenya and 3 others
    (2014) eKLR

    Object of amendment: to conduct litigation on the true state of facts, not a false hypothesis of facts already pleaded

Jurisdiction invoked
Sections 1A, 1B, 3A and 100 of the Civil Procedure Act and Order 8 Rules 3 and 5, Order 11 Rule 3(h) and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mbaru & 111 others v Nchoe & others", Case Analysis (2023). Environment and Land Case 520 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21115/eng@2023-10-31

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