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ELCAllowedNot stated in judgment (suit filed in 2009)· [2025] KEELC 1103 (KLR)

Kenya Anti Corruption Commission v Ndungu & 5 others (Civil Case 179 of 2009) [2025] KEELC 1103 (KLR)

Environment and Land Court
7 March 2025
2,291 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed defendants to amend their defence years into a 2009 land case, confirming amendments are freely allowed before judgment unless they cause real prejudice.

What this practically means

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Executive summary

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The Environment and Land Court at Mombasa (L.L. Naikuni J) ruled on a Notice of Motion dated 6th November 2023 by the 4th and 5th Defendants, Twaha Mbarak Ali and Shamin Mbarak Ali, seeking leave to amend their pleadings (a Statement of Defence and Counter Claim) in a suit filed in 2009 concerning land recovery. The application was brought under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Orders 8 and 51 of the Civil Procedure Rules. The applicants deponed that the suit land had been sold to them but was being sought by the Plaintiff as recovery of assets belonging to the Government of Kenya, and they wished to claim repayment of the purchase price and related expenses. The court framed two issues: whether the application met the threshold for amendment, and who should bear costs. Applying Order 8 Rule 3 and the settled authorities (Eastern Bakery v Castelino, Tildesley v Harper, Molo v Kenya Railways, St. Patrick's Hills School v Bank of Africa), the court held that amendments should be freely allowed before judgment where no injustice beyond compensable costs is caused, that the suit was still at hearing stage with pleadings not closed, and that the amendment introduced no substantially different cause of action. Leave was granted with corresponding liberty for the other parties to respond. The court made no order as to costs, directed disposal within 180 days, and fixed a pre-trial conference for 25th March 2025 before Justice Olola.

Key legal issues

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01

Whether the 4th and 5th Defendants met the threshold for amendment of their pleadings under Order 8 Rule 3

Holding

The application was allowed; the suit was still at hearing stage, pleadings had not closed, and the amendment was bona fide and did not introduce a substantially different cause of action.

Reasoning

Order 8 Rule 3 empowers the court to allow amendments at any stage on just terms. Precedents establish amendments should be freely allowed before hearing if no uncompensatable injustice results. The proposed amendment sought to recover the purchase price for land now claimed by the Plaintiff as government assets, arising from the same facts. The court balanced interests by granting other parties corresponding leave to respond.

p. 4
02

Costs of the application

Holding

No orders as to costs.

Reasoning

Section 27(1) of the Civil Procedure Act provides that costs follow the event. The court found the applicants had succeeded in fulfilling the conditions for amendment, but in the circumstances chose to make no order as to costs.

p. 5

Legal principles established

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  • Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice to the other side, injustice being compensated by costs.
  • Leave to amend may be granted at any stage of the proceedings, even after hearing but before judgment, provided there is no inordinate delay, no prejudice and no new or inconsistent cause of action.

Court orders

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  1. 1.Notice of Motion application dated 6th November, 2023 by the 4th and 5th Defendants allowed
  2. 2.4th and 5th Defendants granted leave to amend their Statement of Defence and Counter Claim, deemed duly filed upon payment of requisite court fees within 21 days
  3. 3.1st, 2nd, 3rd and 6th Defendants at liberty to file responses within 14 days of service
  4. 4.Plaintiff granted 14 days leave to comply with Order 11 case management requirements and to file reply to the Amended Defence and Defence to the Counter Claim under Order 7 Rules 1, 2, 3 & 11
  5. 5.Matter to be disposed of within 180 days; mention on 25th March, 2025 before Justice Olola for Pre-Trial Conference under Order 11
  6. 6.No orders as to costs
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Order 8 Rule 3 and Order 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, "Kenya Anti Corruption Commission v Ndungu & 5 others (Civil Case 179 of 2009) [2025] KEELC 1103 (KLR)", Case Analysis (2025). Not stated in judgment (suit filed in 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1103/eng@2025-03-07

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