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ELCPartially AllowedMotion dated 31st May, 2024 (ELC suit, Plaintiffs' suit re L.R No 330/505)· [2025] KEELC 1074 (KLR)

Mibei (Suing as the legal representative of the Estate of Elizabeth Kilele) v Kirimi (Sued as the legal representative of the Estate of Kirimi M’Muna) & 4 others (Environment and Land Case Civil Suit 360 of 2018) [2025] KEELC 1074 (KLR)

Environment and Land Court
27 February 2025
OAO. A. Angote
2,087 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out amendments made to a land suit without permission, warning that you cannot quietly change your case midway without court approval.

What this practically means

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Executive summary

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The 1st to 3rd Defendants moved the Court by Motion dated 31st May 2024 under Section 3A of the Civil Procedure Act and Orders 2 Rule 15(b), (d), 13(2) and 51 of the Civil Procedure Rules seeking to strike out the Amended Plaint dated 7th November 2023 and to dismiss the Plaintiffs' suit with costs. They argued, through the affidavit of the 2nd Defendant, that the Plaintiff never sought leave before amending the Plaint; that the amendments replicated issues in ELC 147 of 2019, which was dismissed on limitation grounds with an appeal lodged (E242 of 2022); and that the amendments conflicted with the deceased original Plaintiff's position, compromising the suit. The Plaintiff responded that leave was orally granted on 6th November 2023 after his substitution motion was allowed, that the prior suit was dismissed on limitation and not on merit (citing SRM vs JMM), and that the issues raised were triable. The Court framed two issues: whether the Amended Plaint should be struck out, and whether the suit was res judicata. It held that the leave granted on 6th November 2023 covered only the substitution of the deceased Plaintiff under Order 24 rule 3, and that substantial amendments were made without leave, amounting to an abuse of process and an irregularity not curable under Article 159. The Amended Plaint was struck out save for the substitution; the res judicata question became moot. The Motion partly succeeded: the Amended Plaint was struck out, the Plaintiff was to file a fresh Amended Plaint per the 6th November 2023 terms within 14 days, and the Plaintiff was ordered to bear the costs of the Motion.

Key legal issues

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01

Whether the Amended Plaint filed without express leave for substantial amendments should be struck out

Holding

Save for the substitution of the deceased Plaintiff, the substantial amendments were made without leave and the Amended Plaint was struck out

Reasoning

The Court granted leave on 6th November 2023 only for substitution of the deceased Plaintiff under Order 24 rule 3, with the amendment anticipated being the change of name. The record does not show leave for any other amendments. Substantial amendments were therefore made without leave, undermining procedural fairness and taking the opposing party by surprise, and were struck out.

p. 4
02

Whether the suit should be dismissed as res judicata / compromised given ELC 147 of 2019

Holding

The issue became moot once the Amended Plaint was struck out

Reasoning

The Defendants argued the amendments replicated ELC 147 of 2019, dismissed on limitation grounds, and that the suit was compromised. The Plaintiff countered that the prior suit was dismissed on limitation, not on merit. The Court did not decide this issue because its foundation, the impugned amendments, had already been struck out, rendering the question moot.

p. 5

Legal principles established

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  • Amendments after the close of pleadings require leave of the Court; unilateral amendments without leave are a procedural irregularity not curable under Article 159 of the Constitution

Court orders

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  1. 1.The Amended Plaint dated 7th November, 2023 be and is hereby struck out.
  2. 2.The Plaintiff to file an Amended Plaint as per the terms sought and granted on 6th November, 2023 within 14 days hereof.
  3. 3.The Plaintiff shall bear the costs of the Motion.

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 2 Rule 15(b), (d)
  • Civil Procedure RulesOrder 13(2)
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 8 Rule 1
  • Civil Procedure RulesOrder 8 Rule 3(1), (2) and (5)
  • Civil Procedure RulesOrder 24 Rule 3(1)
  • Constitution of KenyaArticle 159

Cases cited (1)

  • SRM vs JMM
    [2021] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Orders 2 Rule 15(b), (d), 13(2) and 51 of the Civil Procedure Rules

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, "Mibei (Suing as the legal representative of the Estate of Elizabeth Kilele) v Kirimi (Sued as the legal representative of the Estate of Kirimi M’Muna) & 4 others (Environment and Land Case Civil Suit 360 of 2018) [2025] KEELC 1074 (KLR)", Case Analysis (2025). Motion dated 31st May, 2024 (ELC suit, Plaintiffs' suit re L.R No 330/505). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1074/eng@2025-02-27

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