Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment as provided· [2025] KEELC 3597 (KLR)

Bathawab Investment Limited v Abdulhafedh aka Zubedi & 4 others (Environment & Land Case 330 of 2015) [2025] KEELC 3597 (KLR)

Environment and Land Court
20 February 2025
3,484 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court allowed a land buyer to amend its case and add a new defendant, ruling prompt action and no real prejudice outweigh technical objections.

What this practically means

#

Executive summary

#
The Plaintiff, by notice of motion under Order 8 Rules 3, 5, 7 and 8 of the Civil Procedure Rules, sought leave to amend its plaint to join a proposed 6th Defendant and to have subsisting injunctive orders extended. The need arose from an email of 11/4/24 revealing that the proposed 6th Defendant, claiming to be a separate legal entity from the 4th Defendant and adjudged owner of the suit land LR No 209/10350 in ELC 136 of 2009, had admitted knowledge of the Plaintiff's purchase and part payment. All Defendants opposed through grounds of opposition, arguing inordinate delay, statute bar under Section 4 of the Limitation of Actions Act, introduction of a new cause of action, prejudice in a part-heard suit, and abuse of process. Only the Plaintiff and 4th Defendant filed written submissions. The court, applying Section 100 of the Civil Procedure Act and Order 8 Rule 5, held that amendments should be freely allowed unless prejudice not compensable by costs would result. It found the application filed timeously after discovery of the 6th Defendant, no new cause of action introduced, and rejected the limitation objection because the proposed 6th Defendant was only adjudged owner of the land in 2023, constituting exceptional circumstances, and it had itself enjoined the Plaintiff in related proceedings. The only prejudice identified was delay, compensable by costs. The application was allowed with timelines for filing and service of the amended plaint, defences within 30 days, the Plaintiff to bear the costs of the application, and the matter to be fixed for hearing expeditiously.

Key legal issues

#
01

Whether the application was filed after inordinate delay

Holding

The application was filed timeously upon the Plaintiff learning of the proposed 6th Defendant's existence

Reasoning

The Plaintiff first learned of the proposed 6th Defendant through an email dated 11/4/24 and filed the application on 1/5/24. The court found no evidence of inordinate delay and noted the hearing had only just commenced with PW1 yet to be re-examined.

p. 5
02

Whether the amendment introduces a new cause of action

Holding

No new cause of action; the claim against the proposed 6th Defendant arises from the same series of transactions

Reasoning

The claim against the proposed 6th Defendant stems from the same transactions concerning the purchase of the suit land, and the amendment flows from admissions made in ELC 136 of 2009. No departure from the existing cause of action was demonstrated.

p. 5
03

Whether the cause of action against the proposed 6th Defendant is statute barred

Holding

The time-bar objection was rejected because the proposed 6th Defendant was adjudged owner of the land in 2023, constituting exceptional circumstances

Reasoning

Although the cause of action is said to have arisen in 2011, the land recovery claim carries a 12-year limitation bar. The proposed 6th Defendant was only adjudged owner of the suit land in 2023 and has itself enjoined the Plaintiff in related proceedings, so the limitation objection is not maintainable.

p. 6
04

Whether any party would suffer prejudice if the amendment is allowed

Holding

The only prejudice is delay, which can be ameliorated by an award of costs

Reasoning

The court considered that prejudice arises from unexplained delay or inability to defend a totally different claim. Here the only prejudice is the delay in the hearing, already derailed once, which is compensable in costs.

p. 6

Legal principles established

#
  • Amendments should be freely allowed at any stage provided no prejudice or injustice not compensable by costs results
  • Amendment to defeat a limitation defence may only be allowed in exceptional and peculiar circumstances

Court orders

#
  1. 1.The applicant to file and serve its amended plaint together with its pretrial bundles within 14 days from the date of the Ruling, failing which the orders lapse automatically
  2. 2.The Plaintiff to serve the proposed 6th Defendant with all the pleadings in the suit within the next 14 days
  3. 3.Upon service, the Defendants at liberty to file and serve their defence and/or amended defence(s) together with pretrial bundles within 30 days
  4. 4.Any pleadings filed out of time to stand expunged
  5. 5.The Plaintiff to meet the costs of the application
  6. 6.Parties to fix the matter for hearing expeditiously

Authorities

#

Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 8 Rules 3, 5, 7 and 8
  • Civil Procedure RulesOrder 2 Rule 6(1)
  • Civil Procedure RulesOrder VIIA Rule 3
  • Limitation of Actions ActSection 4
  • Evidence ActSection 106B(4)
  • Companies Act, Chapter 486 of the Laws of KenyaNot specified

Cases cited (9)

  • Ukamba Agricultural Institute Limited Vs South Eastern University College & City Council of Nairobi
    ELC 136 of 2009
  • Daniel Otieno Migore Vs South Nyanza Sugar Co Ltd
    (2018) eKLR
  • William Koross Vs Hezekiah Kiptoo Komen & others
    (2015)
  • Central Kenya Limited Vs Trust Bank Limited & 5 Others
    [200] eKLR
  • Beoco Ltd v. Alfa Laval Co. Ltd
    [1994] 4 ALL ER 464
  • James Ochieng Oduor T/A Ochieng Oduol & Co. Advocates VS Richard Kuloba
    (2008) eKLR
  • Barclays Bank D.C.O Vs Shamsudin
    (1973) EA 451
  • Institute for Social Accountability and Another Vs. Parliament of Kenya & 3 Others
    (2014) eKLR
  • Cropper V Smith
Jurisdiction invoked
Sections 100 of the Civil Procedure Act and Order 8 Rules 3, 5, 7 and 8 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bathawab Investment Limited v Abdulhafedh aka Zubedi & 4 others (Environment & Land Case 330 of 2015) [2025] KEELC 3597 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3597/eng@2025-02-20

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