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ELCPartially AllowedNot stated in judgment· [2025] KEELC 5481 (KLR)

Kisang & another v Cherutich (Sued as the Legal Representatives of the Late Koleta K Cherutich) & 2 others (Environment and Land Case 66 of 2022) [2025] KEELC 5481 (KLR)

Environment and Land Court
8 July 2025
LWL. N. Waithaka
1,579 words in judgment
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The bottom line

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A Kenyan land court allowed defendants to amend their defence and add a counterclaim after four years of delay, but ordered them to pay the legal costs.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court (L. N. Waithaka, J) on a notice of motion dated 30th September 2024 by the 1st and 2nd defendants, seeking leave to amend their amended statement of defence so as to introduce a counterclaim, and that the amended defence be deemed duly filed and served. The applicants, children of two of the three widows of Paulo Cherutich Kibor whose estate was distributed in Eldoret High Court Succession Cause No. 220 of 1997, sought to counterclaim for a declaration that they are the rightful owners of parcels E/Marakwet/Kapsowar/435 and E/Marakwet/Kapsowar/20, where their mothers are buried, and for a permanent injunction against the plaintiffs. The respondents opposed, alleging the applicants were causing delay, particularly after the death of the original 1st and 2nd defendants, whose substitution followed a citation cause and a ruling of 12th March 2024. The 3rd defendant did not oppose. The court identified the sole issue as whether the application had merit. Relying on Section 100 of the Civil Procedure Act, Order 8 rule 3 of the Civil Procedure Rules and principles from John Nyagaka Osoro v Reynold Karisa Charo, the court held that amendments should be allowed freely unless prejudicial, that the proposed counterclaim would help determine the real question in controversy, and that although the applicants were guilty of inordinate delay of over four years, there was no bad faith and any injustice could be compensated by costs. Leave was granted on conditions, with the respondents at liberty to reply within 21 days, and costs of the application were awarded to the respondents against the applicants.

Key legal issues

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01

Whether leave to amend the defence to include a counterclaim should be granted

Holding

Leave granted; the proposed amendments will not alter the nature or substance of the suit and will assist the court determine the real question in controversy, despite inordinate delay

Reasoning

Applying Order 8 rule 3 and Section 100 of the Civil Procedure Act and the principles in the cited authorities, the court found the amendments made in good faith, not intended to advance a new ground of defence, and causing no injustice to the respondents that could not be compensated by costs. The applicants' inordinate delay of over four years was noted but did not defeat the application.

p. 4

Legal principles established

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  • Amendments of pleadings should be allowed freely unless they cause prejudice to the other party, and delay can be cured by costs
  • The power to amend pleadings can be exercised at any stage of the proceedings before judgment

Court orders

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  1. 1.Prayer 3 and 4 in the application are allowed on condition that payment for the amended defence and counterclaim is made in 14 days
  2. 2.The respondent is given leave to file a reply, if need be, within 21 days from the date of payment of the amended defence and counterclaim
  3. 3.Costs of the application to be borne by the applicants

Authorities

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Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 8 rule 3; Order 8
  • Civil Procedure ActSection 27 (costs)
  • Limitations Actreferred to in cited principles

Cases cited (11)

  • Institute for Social Accountability & Another v Parliament of Kenya & 3 others
    (2014) eKLR
  • Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited
    (2013) eKLR
  • Kassam v Bank of Baroda
    (2002) eKLR
  • Andrew Wabuyele Biketi v Chinese Centre for the Promotion of Investment Development & Trade in Kenya Limited & 2 Others
    (2015) eKLR
  • Bosire Ogero v Royal Media Services
    (2015) eKLR
  • Daniel Ngetich & Another v K-Rep Bank Limited
    (2013) eKLR
  • Emerge Development Limited v Chestnut Uganda Limited & Another
    (2020) eKLR
  • Ochieng & Others v First National Bank of Chicago
    Civil Appeal No. 147 of 1991
  • St. Patrick Hill School Ltd v Bank of Africa Kenya Ltd
    (2018) eKLR
  • John Nyagaka Osoro v Reynold Karisa Charo & 5 others
    [2021] eKLR
  • Eldoret High Court Succession Cause No.220 of 1997
Jurisdiction invoked
Order 8 of the Civil Procedure Rules; Section 100 of the Civil Procedure Act

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, "Kisang & another v Cherutich (Sued as the Legal Representatives of the Late Koleta K Cherutich) & 2 others (Environment and Land Case 66 of 2022) [2025] KEELC 5481 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5481/eng@2025-07-08

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