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ELCDismissed· [2025] KEELC 3958 (KLR)

Kawinzi v Kitana & 2 others (Environment and Land Case E046 of 2023) [2025] KEELC 3958 (KLR)

Environment and Land Court
20 May 2025
AKA. Y. Koross
1,226 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a landowner's amended court filing because it was made before pleadings officially closed, confirming one free amendment is allowed.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (A. Y. Koross, J) on a notice of motion dated 11/10/2024 by the 1st defendant seeking to have the court decline the plaintiff's amended plaint dated 11/07/2024 and filed on 2/08/2024, or in the alternative strike it out, on grounds that the amendment introducing a 2nd plaintiff was made without leave of the court and would prejudice the 1st defendant. The plaintiff opposed, contending the amendment was made before closure of pleadings under the first amendment procedure in Order 8 Rule 1(1) of the Civil Procedure Rules. The 2nd and 3rd defendants did not participate. The court identified a single issue: whether the motion was merited. It outlined the two-pronged amendment framework in Order 8: amendment once without leave before pleadings close, and amendment with leave thereafter, with Order 8 Rule 2(1) allowing a defendant within 14 days of service to apply to disallow an amendment where leave would have been refused. Relying on Order 2 Rule 13, the court found pleadings close 14 days after service of the reply or defence to counterclaim. The reply to defence and defence to counterclaim were filed on 2/08/2024, the same day as the amended plaint, so pleadings had not closed. The court also treated out-of-time filings as technical infractions curable under Article 159(2)(b) of the Constitution. Because the 1st defendant failed to demonstrate when the amended plaint and reply were served upon it, the court found the motion unmerited, dismissed it with costs in the cause, confirmed the amended plaint as properly on record, and directed compliance with Order 11 and exchange of indexed and paginated trial bundles. Delivered at Machakos on 20 May 2025.

Key legal issues

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01

Whether the plaintiff's amended plaint filed on 2/08/2024 was properly on record without leave of the court

Holding

The motion was dismissed; the amended plaint is properly on record because pleadings had not closed when the amendment was filed and the 1st defendant did not demonstrate when the documents were served on it

Reasoning

The court set out the two amendment procedures under Order 8 CPR: amendment without leave before closure of pleadings (Rule 1(1)), and amendment with leave after closure (Rule 3). Pleadings close 14 days after service of reply or defence to counterclaim under Order 2 Rule 13. The reply to defence and defence to counterclaim were filed on 2/08/2024, the same day as the amended plaint, so pleadings had not closed. The 1st defendant failed to prove service dates of the amended documents, undermining its application to disallow the amendment under Order 8 Rule 2(1).

p. 3
02

Whether the delayed filing of the defence, counterclaim, reply and defence to counterclaim vitiated the proceedings

Holding

No; the delays were technical infractions curable under Article 159(2)(b) of the Constitution

Reasoning

The 1st defendant's defence and counterclaim were filed and served out of time, and the reply and defence to counterclaim likewise. The court held such procedural lapses are technical and curable under the overriding objective in Article 159(2)(b), and treated the documents as properly on record.

p. 3

Legal principles established

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  • A party may amend pleadings once without leave of the court at any time before pleadings are closed
  • Pleadings close fourteen days after service of the reply or defence to counterclaim, or if neither is served, fourteen days after service of the defence
  • Filing of pleadings out of time are technical infractions curable by Article 159(2)(b) of the Constitution

Court orders

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  1. 1.The Motion dated November 10, 2024 is dismissed with costs being in the cause
  2. 2.The amended plaint is properly on record
  3. 3.Parties directed to fully comply with Order 11 of the CPR and exchange indexed and paginated trial bundles

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 1(1)
  • Civil Procedure RulesOrder 8 Rule 1(2)
  • Civil Procedure RulesOrder 8 Rule 2(1)
  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 2 Rule 13
  • Civil Procedure RulesOrder 11
  • Constitution of KenyaArticle 159(2)(b)
Jurisdiction invoked
Original civil jurisdiction; application brought under Order 8 of the Civil Procedure Rules, Article 159(2)(b) of the Constitution invoked on delays

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, "Kawinzi v Kitana & 2 others (Environment and Land Case E046 of 2023) [2025] KEELC 3958 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3958/eng@2025-05-20

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