Ololabura & another v Kilusu & 2 others (Environment & Land Case E015 of 2023) [2025] KEELC 4278 (KLR)

Environment and Land Court

5 June 2025

MMM.N Mwanyale

747 words in judgment

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The bottom line

Kenya's Environment and Land Court allowed a defendant to amend his defence and add a counter-claim before trial, confirming amendments are freely permitted until judgment.

What this practically means

Executive summary

This ruling of the Environment and Land Court at Kilgoris, delivered by Hon. M.N Mwanyale J on 5 June 2025, determines a Notice of Motion dated 30 January 2025 by the 1st Defendant seeking to amend his statement of defence. The applicant, David Leboo Kilusu, wished to plead how he came into possession of the suit land and to add a counter-claim, relying on new facts and documents filed by the 2nd and 3rd Defendants after he filed his original defence. He invoked Sections 1A, 1B, 3, 3A, 63(e) and 100 of the Civil Procedure Act, Sections 3, 7A and 19 of the ELC Act, and Order 8 Rules 3 and 5 and Order 51 Rule 1 of the Civil Procedure Rules. The plaintiff, Samuel Lekakeny Kinanta, opposed the application, arguing it was an abuse of process, would change the cause of action by challenging the legality of the 1st Defendant's title, and that the counter-claim introduced an entirely new issue concerning membership of the ranch. The court framed a single issue: whether the application was merited. Applying Order 8 Rule 3 and Section 100, the court held that since the suit had not been heard, amendments before judgment are generally allowed to bring the real issues in controversy before the court, that the plaintiff could reply to the counter-claim and call evidence, and that no prejudice would befall the respondent. The court allowed the application in terms of prayers 1 and 2, with costs in the cause, and directed the respondent to file a Reply to defence and defence to counter-claim within 15 days.

Key legal issues

Whether the proposed amendments to the 1st Defendant's defence, including a counter-claim, should be allowed

Holding

The amendment was allowed; the suit had not been heard, the amendments would bring all issues in controversy before the court, and the plaintiff could reply to the counter-claim without prejudice.

Reasoning

The court noted that Order 8 Rule 3 and Section 100 of the Civil Procedure Act empower it to allow amendments. The applicant sought to plead new facts arising from documents filed by the 2nd and 3rd Defendants after his original defence. Since the suit was not heard, amendments before judgment are generally permissible to raise the real controversies. The plaintiff would have an opportunity to reply to the counter-claim and call evidence, so no prejudice would befall the respondent.

p. 2

Legal principles established

An amendment may be allowed before judgment so as to bring the real issues in controversy before the court, provided no prejudice is caused to the other party.

Court orders

1.Application allowed in terms of prayers 1 and 2, with costs in the cause
2.Respondent to file and serve their Reply to defence and defence to counter-claim within 15 days

Authorities

Legislation

Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e) and 100
Environment and Land Court ActSections 3, 7A and 19
Civil Procedure RulesOrder 8 Rules 3 and 5; Order 51 Rule 1

Jurisdiction invoked: Sections 1A, 1B, 3, 3A, 63(e) and 100 of the Civil Procedure Act; Sections 3, 7A and 19 of the ELC Act; Order 8 Rules 3 and 5 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ololabura & another v Kilusu & 2 others (Environment & Land Case E015 of 2023) [2025] KEELC 4278 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4278/eng@2025-06-05

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