Criticos & another v Third Engineering Bureau of China City Construction Group Company Limited; Masamo (Third party) (Environment & Land Case 141 of 2014) [2024] KEELC 704 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a landowner to add the new owner of disputed land to a case and fix a title error, even nine years in.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended 2nd Plaintiff (Kenya Trade and Development Company Limited) should be joined as a party
Joinder allowed as the intended 2nd Plaintiff is the current registered owner of the suit property and ultimate beneficiary of any orders, with no demonstrated prejudice
The court applied Order 1 Rule 10(2) and joinder principles from Joseph Njau Kingori and other authorities. Although the application came nine years after filing, the matter had never been set down for pre-trial conferencing and no prejudice from joinder was demonstrated. The intended 2nd Plaintiff, as current registered owner of the suit property following the transfer, is a necessary and proper party whose presence enables the court to effectually adjudicate and bind the owner of the land by any decree.
Whether leave to amend the Plaint (correcting title description and pleading special damages) should be granted
Amendment allowed; the amendment is legally founded and in the interest of justice notwithstanding the delay
The court held that the power to amend under Order 8 Rule 3 and Section 100 of the Civil Procedure Act may be exercised at any stage, and that amendments made in good faith should generally be allowed where costs can compensate. The misdescription of the suit property was an omission of a digit, and the claim for special damages was necessary to determine the real questions in controversy. The Defendant's objections went to the merits of the suit and could be raised in defence to the amended plaint rather than on the amendment application.
Who should bear the costs of the application
Costs of the application to abide the outcome of the main suit, as an exercise of discretion under Section 27 of the Civil Procedure Act
The court reiterated that costs follow the event under Section 27(1) of the Civil Procedure Act but that the award of costs is discretionary and depends on the circumstances of each case, citing Morgan Air Cargo Limited v Everest Enterprises Limited. Given that the applicant succeeded but the application was interlocutory, the court ordered costs to await the outcome of the main suit.
Legal principles established
#- All amendments should be freely allowed and at any stage of the proceedings provided the amendment or joinder will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs
- Amendments sought before 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
- Costs follow the event but remain at the discretion of the court which may for good reason order otherwise
Court orders
#- 1.The Chamber Summons application dated 27th April, 2023 be and is hereby found to have merit and hence allowed in its entirety
- 2.An order made to have the Kenya Trade and Development Company Limited be and is hereby enjoined as the 2nd Plaintiff
- 3.Grants the Plaintiffs 14 days leave to file and serve Amended Plaint
- 4.The annexed Amended Plaint be deemed duly filed on payment of requisite court fees
- 5.The Defendant and the Third Party to file their response to the Amended Plaint within seven (7) days of this ruling
- 6.The matter to be transferred henceforth and be mentioned on 12th March, 2024 before Voi Courts to confirm compliance, conducting of Pre-trial conference under Order 11 and further directions
- 7.The cost of the Chamber Summons application dated 27th April, 2023 to abide the outcome of the main suit
- Jurisdiction invoked
- Order 1 Rules 1, 10, 14 and 25 and Order 8 Rules 3 and 5 of the Civil Procedure Rules 2010; Sections 1A, 1B, 3A, 63(e) and 100 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sheobo v Harshiv Autospares Hardware & Suppliers Limited & 5 others (Environment and Land Case E192 of 2022) [2026] KEELC 4205 (KLR)[2026] KEELC 4205 (KLR)8 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Criticos & another v Third Engineering Bureau of China City Construction Group Company Limited; Masamo (Third party) (Environment & Land Case 141 of 2014) [2024] KEELC 704 (KLR)", Case Analysis (2024). Chamber Summons application dated 27th April, 2023 (ELC suit at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/704/eng@2024-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.