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ELCPartially AllowedNot provided in judgment· [2024] KEELC 232 (KLR)

Kilinda & 20 others ((Suing as Members of Ngao ya Kathatu Welfare Society)) v Njoroge & another (Environment & Land Case 564 of 2013) [2024] KEELC 232 (KLR)

Environment and Land Court
29 January 2024
EWE. K. WABWOTO
1,458 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Nairobi court allowed landowners to update their case documents after a decade-long surveyor delay, confirming that late amendments can proceed if made honestly before trial.

What this practically means

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Executive summary

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This was an interlocutory application by Notice of Motion dated 1st November 2023, brought by the Plaintiffs/Applicants led by Julius M. Kilinda, seeking leave to further amend their Plaint. The application arose from a court order of 1st July 2013 directing the County Surveyor to file a report delineating the location of Soweto Ex-Gitau Village Scheme Plot number 5/258 and Plot number 4/313. After nearly ten years of non-compliance, the 2nd Defendant filed an undated, unsigned and largely non-compliant report which, the Plaintiffs alleged, reconfigured and renumbered the properties so that their plot no longer appeared adjacent to their neighbouring plot, rendering them unable to trace their suit property. The Plaintiffs sought to amend the Plaint to raise these issues and, in the alternative, claim compensation, general damages and a refund of approximately Sh.52,340 in land rent and rates. The 1st Defendant opposed, arguing the amendment introduced new, time-barred causes of action, involved inordinate delay, and that equity aids the vigilant. Justice E. K. Wabwoto framed a single issue: whether leave to amend should be granted. Applying Order 8 Rules 3 and 5 of the Civil Procedure Rules and the principles in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited, the court found the application merited, noting it was made before hearing and in good faith, and allowed the amendment. Leave was granted to file the Further Amended Plaint within 7 days, the Defendants were to file amended pleadings within 14 days of service, and each party was to bear its own costs.

Key legal issues

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01

Whether leave to further amend the Plaint should be granted

Holding

Application allowed; amendment permitted before hearing

Reasoning

The court exercised its discretion under Order 8 Rules 3 and 5 of the Civil Procedure Rules. It noted the 2nd Defendant took nearly 10 years to comply with the surveyor-report order of Mutungi J of 1st July 2013, and the report filed was sketchy and non-compliant. The application was made before commencement of hearing, in good faith, and without prejudice to the Defendants who could file amended defences.

p. 4
02

Whether the application was timeous and in good faith

Holding

Yes

Reasoning

The court found the application was filed after receipt of the County Surveyor's report and prior to commencement of hearing. On good faith, the Plaintiffs' submissions confirmed willingness to allow the Defendants to file amended defences in response. The delay was attributable in part to the 2nd Defendant's nearly 10-year non-compliance with the 2013 court order.

p. 3

Legal principles established

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  • The court may at any stage of the proceedings allow any party to amend pleadings on such terms as to costs or otherwise as may be just
  • Amendments sought in good faith before hearing, even if late, should be allowed provided costs can compensate the other side and no limitation right is defeated

Court orders

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  1. 1.Leave granted to the Plaintiffs/Applicants to file and serve their Further Amended Plaint within 7 days
  2. 2.Defendants directed to file and serve their amended pleadings, if so required, within 14 days of service
  3. 3.Each party to bear its own costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 8 Rule 5(1)

Cases cited (3)

  • Central Kenya Limited v Trust Bank Limited
    (2000)2 EA 365
  • St. Patricks Hill School Limited v Bank of Africa Kenya Limited
    [2018] eKLR
  • Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited
    [2013] eKLR
Jurisdiction invoked
Order 8 Rules 3 and 5 of the Civil Procedure Rules (amendment of pleadings)

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, "Kilinda & 20 others ((Suing as Members of Ngao ya Kathatu Welfare Society)) v Njoroge & another (Environment & Land Case 564 of 2013) [2024] KEELC 232 (KLR)", Case Analysis (2024). Not provided in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/232/eng@2024-01-29

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