Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in judgment· [2025] KEELC 4369 (KLR)

Shire v Omar & 5 others (Environment and Land Case 63 of 2006) [2025] KEELC 4369 (KLR)

Environment and Land Court
5 June 2025
ECE. C. CHERONO
1,791 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court allowed a landowner to amend her claim after 20 years of litigation, ruling that delay alone doesn't justify refusing amendments unless opponents suffer uncompensated prejudice.

What this practically means

#

Executive summary

#
The Plaintiff/Applicant, by Notice of Motion dated 17th February 2025, sought leave to further re-amend her plaint in a land dispute pending since 2006 concerning the allegedly illegal creation of land parcel Bungoma/Municipality/854 in front of her parcel Bungoma/Municipality/398. She wished to add Elizabeth Wafula alias Elithabeth Wafula, the original Allotee of parcel 854, re-introduce other plaintiffs previously removed, remove the 3rd Defendant as an unnecessary party, and plead particulars of fraud with greater precision. The 1st and 2nd Respondents opposed through grounds of opposition, arguing the application was frivolous, abusive, brought to counter their further witness statements, and that twenty years of litigation must end. In submissions, the Applicant relied on Central Bank Ltd v Trust Bank Ltd, arguing that the parties' consent of 2nd December 2024 for the case to start de novo meant no evidence had been taken, so no inordinate delay or prejudice arose. The Respondents contended the repeated applications caused prejudice after endless attendances since 2006. Applying Order 8 Rule 3 CPR and the passage from Central Bank Ltd v Trust Bank Ltd, the court held that amendments should be freely allowed unless the delay causes prejudice beyond monetary compensation. Finding the application merited, the court granted leave to re-amend within three days, allowed the Defendants to amend their defence, awarded thrown away costs of Kshs. 10,000/ to the 1st and 2nd Defendants, and directed the plaintiff to prosecute the suit within eight months failing which it would stand dismissed for want of prosecution.

Key legal issues

#
01

Whether leave to further re-amend the plaint should be granted despite the suit having been pending for approximately 20 years

Holding

Yes. The court exercised its discretion under Order 8 Rule 3 CPR, holding that amendments should be freely allowed at any stage before judgment unless the delay prejudices the opposite side beyond monetary compensation in costs; the consent to start the suit de novo meant no evidence was on record and the defendants could amend their defence.

Reasoning

The court adopted the test in Central Bank Ltd v Trust Bank Ltd that the overriding consideration is whether the amendments are necessary for the just determination of the controversy, and that mere delay is not a ground for declining leave unless it causes prejudice beyond monetary compensation. Since the parties had consented to start the case de novo, no evidence had been taken, the defendants could cross-examine the plaintiff and amend their defence, and therefore no prejudice beyond costs was established.

p. 4

Legal principles established

#
  • The overriding consideration in amendment applications is whether the amendments are necessary for the just determination of the controversy; mere delay is not a ground for refusing leave unless it prejudices the opposite side beyond compensation in costs

Court orders

#
  1. 1.The plaintiff/Applicant to further amend the plaint in terms of the draft annexed to the affidavit in support of the application within three days from the date of the Ruling/Order
  2. 2.The Defendants shall be at liberty to further amend, file and serve their defence in accordance with the Civil Procedure Act and the Rules made thereunder
  3. 3.The Plaintiff/Applicant to pay the 1st and 2nd Defendants thrown away costs of the application at Kshs. 10,000/ within 14 days from the date of the Ruling/Order
  4. 4.The plaintiff to take pragmatic steps to prosecute this case within eight (8) months from the date of the Ruling/Order failing which the suit shall stand dismissed for want of prosecution

Authorities

#

Legislation

  • Civil Procedure (Amendment) Rules 2020Order 8
  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure ActSection 100

Cases cited (4)

  • George Olel Mung'au & 5 Others v Joseph Situma Matafari & 10 Others
    (2022) eKLR
  • Central Bank Limited v Trust Bank Ltd
    (2000) 2 E.A 365
  • Andrew Ouko v Kenya Commercial Bank Ltd & 3 Others
    (2014) KLR
  • St. Patrick's Hill School Limited v Bank of Africa Kenya Limited
    (2018) eKLR
Jurisdiction invoked
Order 8 Rule 3 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Shire v Omar & 5 others (Environment and Land Case 63 of 2006) [2025] KEELC 4369 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4369/eng@2025-06-05

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