Scorpion Properties Ltd & another v Mody & 8 others (Environment and Land Case Civil Suit 2156 of 2007 & Civil Suit 1727 of 2002 (Consolidated)) [2024] KEELC 6400 (KLR)

Environment and Land Court

26 September 2024

LMLUCY N. MBUGUA

477 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~2 min to read original · ~4 min brief

The bottom line

Kenya's Environment and Land Court allowed a late amendment to a defence and counterclaim, confirming that pre-hearing amendments are freely allowed where no one is prejudiced.

What this practically means

Executive summary

The 6th Defendant in Civil Suit No. 2156 of 2007 moved the court by Notice of Motion dated 25 June 2024 seeking leave to further amend his amended defence and counterclaim. He averred that he is the registered proprietor of LR No. Block 91/217 and that the Attorney General had filed a voluminous bundle of documents and witness statements long after his pleadings, raising salient issues on the procedure and process of acquisition of the suit land. He sought to add a prayer for compensation for the current value of the property should it revert to the government, contending that no new cause of action was introduced and no prejudice would be suffered by the Plaintiffs. The application was unopposed, and the 6th Defendant filed submissions relying on Order 8 Rules 3 and 5 of the Civil Procedure Rules and the case of John Nyagaka Osoro v Reynold Karisa Charo & 5 others. The court held that Order 8 Rules 3 and 5 confer discretion to allow amendments at any stage so as to bring forth all issues in dispute. Noting that the suit was yet to take off, that all parties were not opposed, and that the amendments introduced no new issues, the court was persuaded by Springbox Kenya Ltd v Daniel Kulanga Nthusa that pre-hearing amendments should be freely allowed absent injustice. The application was allowed as drawn, with the further amended defence and counterclaim to be filed and served within 14 days.

Key legal issues

Whether leave to further amend a defence and counterclaim should be granted at a late stage

Holding

Yes; the court has discretion under Order 8 Rules 3 and 5 to allow amendments at any stage, and where the suit has not taken off, the application is unopposed and no new issues are introduced, the amendment will be allowed without prejudice to the other side.

Reasoning

The court invoked Order 8 Rules 3 and 5 of the Civil Procedure Rules, which confer discretion to allow amendments at any stage so as to bring forth all issues in dispute. The suit had not taken off, all parties were not opposed, the amendments would cause no prejudice, and they did not introduce new issues. The court was persuaded by the Springbox Kenya Ltd formulation that pre-hearing amendments should be freely allowed absent injustice.

p. 2

Legal principles established

Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice to the other side

Court orders

1.The application dated 25.6.2024 is allowed as drawn
2.The further amended defence and counterclaim to be filed and served within 14 days from the date of the ruling

Authorities

Legislation

Civil Procedure RulesOrder 8 Rule 3
Civil Procedure RulesOrder 8 Rule 5

Cases cited (2)

John Nyagaka Osoro v Reynold Karisa Charo & 5 others
[2021] eKLR
Springbox Kenya Ltd v Daniel Kulanga Nthusa
[2015] eKLR

Jurisdiction invoked: Order 8 Rules 3 and 5 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Scorpion Properties Ltd & another v Mody & 8 others (Environment and Land Case Civil Suit 2156 of 2007 & Civil Suit 1727 of 2002 (Consolidated)) [2024] KEELC 6400 (KLR)", Case Analysis (2024). Civil Suit No. 2156 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6400/eng@2024-09-26

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