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ELCAllowedApplication dated 19/11/2024 (suit number not stated in the judgment)· [2025] KEELC 255 (KLR)

Freudenthal & another v Ryrie & another (Environment & Land Case E051 of 2023) [2025] KEELC 255 (KLR)

Environment and Land Court
30 January 2025
MNMwangi Njoroge
1,194 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a land dispute amended claim and witness statements filed months late without the court's permission.

What this practically means

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Executive summary

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The defendants applied by notice dated 19/11/2024 for the striking out of the plaintiffs' amended plaint dated 28th October 2024, together with the costs of the application, on the ground that the amended plaint and accompanying witness statements (signed by Thomas Mason, Salim Al-Amin and the 1st plaintiff) were filed without leave of the court after pleadings had closed. The plaintiffs opposed via grounds of opposition dated 9/12/2024, contending that leave had been granted in a ruling of 24/4/2024, that intervening applications and the court's non-sitting delayed the matter, and that the defendants would suffer no prejudice. Mwangi Njoroge J examined the record and found that no leave to amend had been granted on 24/4/2024 or at any other time. Pleadings had closed fourteen days after service of the amended defence on 14/2/2024, expiring on 28/2/2024; the amended plaint was filed on 22/11/2024, nearly eight months later, without leave. Citing Order 2 Rule 13 CPR and the Salat decision on documents filed out of time, the court held the amended plaint irregular and struck it out. Applying the D'sumba decision on documents required to accompany pleadings, the court further held that the witness statements and documents filed alongside the amended plaint were equally irregular and struck them out, as the plaintiffs never sought leave. The application was allowed with costs to the defendants, to be borne by the plaintiffs, and the matter was set down for directions.

Key legal issues

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01

Whether pleadings had closed and the amended plaint required leave

Holding

Pleadings closed 14 days after service of the last pleading (the amended defence of 14/2/2024), expiring 28/2/2024; no leave was granted on 24/4/2024 or at any other time, so the amended plaint filed 28/10/2024 was filed without leave and out of time.

Reasoning

Order 2 Rule 13 CPR closes pleadings fourteen days after service of the reply or defence. The court examined the record and found no ruling of 24/4/2024 granting leave to amend. Pendency of other interlocutory applications between June and September 2024 did not suspend the parties' obligation to comply with the rules on pleadings. Filing almost 8 months after expiry without leave was irregular and denied the defendants an opportunity to respond to the amendments.

p. 2
02

Whether the witness statements and documents filed alongside the amended plaint should stand or fall with it

Holding

The witness statements and documents filed with the irregular amended plaint are equally irregular, as leave was never sought, and they are struck out.

Reasoning

Relying on Alois Oceano D'sumba v Rajnikant Narshi Shah, the court held that documents not filed with the original plaint require leave. The witness statement of the 2nd plaintiff and further witness statement of the 1st plaintiff were meant to support the purportedly amended plaint; no separate standard applies. If the amended plaint is struck out, they serve no useful purpose; the court cannot refer to them as though they were never filed.

p. 3

Legal principles established

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  • Documents and pleadings filed without leave of court after close of pleadings are irregular and a nullity.
  • Where the law prescribes a time for doing an act, an extension of time must be sought before the act is done; a document filed out of time without leave is of no legal consequence.
  • A party wishing to introduce new or additional evidence or documents must seek leave of the court before hearing commences.

Court orders

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  1. 1.The amended plaint dated 28/10/24 is struck out
  2. 2.All the witness statements filed alongside the amended plaint are struck out
  3. 3.Costs of the application to be borne by the plaintiffs
  4. 4.Mention of the matter on 19/2/2025 for directions (judgment states 19/2/2024, an apparent date error)

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 13
  • Civil Procedure RulesOrder 7 rule 5
  • Civil Procedure RulesOrder 11

Cases cited (2)

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
  • Alois Oceano D’sumba v Rajnikant Narshi Shah & another
    [2017] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Civil Procedure Rules (Order 2 Rule 13 CPR) - no specific constitutional provision invoked

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, "Freudenthal & another v Ryrie & another (Environment & Land Case E051 of 2023) [2025] KEELC 255 (KLR)", Case Analysis (2025). Application dated 19/11/2024 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/255/eng@2025-01-30

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