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ELCDismissedNot stated in the excerpt (ELC suit; application dated 17th July, 2025)· [2025] KEELC 6663 (KLR)

Kipsang & 2 others (Suing for and on Behalf of Themselves & Keres Self Help Group) v Moi & another (Environment and Land Case E027 of 2022) [2025] KEELC 6663 (KLR)

Environment and Land Court
17 July 2025
AOAntony O. Ombwayo
1,187 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed Gideon Moi's attempt to strike out the Plaintiffs' amended plaint because leave to amend had already been granted by consent on the record.

What this practically means

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Executive summary

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The 1st Defendant, Gideon Kipsielei Towett Moi, applied by notice of motion dated 17th July, 2025 for the striking out of the Plaintiffs' amended plaint dated 24th April, 2023 (filed 2nd May, 2023) or, in the alternative, its expungement together with all consequential pleadings, on the ground that it was filed without leave of the court contrary to Order 2 Rule 15 of the Civil Procedure Rules, 2010. He argued that pleadings had closed upon the filing of his statement of defence on 23rd June, 2022, that the amendment introduced a new plaintiff and a new defendant and omitted the 1st plaintiff, thereby raising a substantially different cause of action and prejudicing him. The 3rd Plaintiff opposed the application, contending that it was filed in bad faith on the eve of the hearing, that the correct remedy lay under Order 8 Rule 2, and that the Plaintiffs had in fact sought leave to amend by an application dated 11th April, 2023. The court examined its record and found that on 18th April, 2023 that application was allowed by consent, with counsel for the 1st Defendant present in court. The court therefore held that the present application was misplaced and overtaken by events, dismissed it with costs, and ordered that the suit proceed accordingly. The authorities cited by both counsel were not adopted as binding propositions in the ruling.

Key legal issues

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01

Whether the amended plaint filed without a fresh grant of leave was fatally defective and liable to be struck out or expunged

Holding

The application failed because the court record showed that leave to amend had been granted by consent on 18th April, 2023, with counsel for the 1st Defendant present.

Reasoning

The court perused its own record and confirmed that the Plaintiffs' application dated 11th April, 2023 seeking leave to amend the plaint to include the 3rd Defendant was allowed by consent on 18th April, 2023. Counsel for the 1st Defendant was present when the application was allowed and was therefore aware of it. Consequently, the contention that the amended plaint was filed without leave could not stand, and the application was dismissed with costs.

p. 3

Legal principles established

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  • Once leave to amend a plaint has been granted by consent, a later application to strike out the amended plaint for want of leave is misplaced and overtaken by events.

Court orders

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  1. 1.The application dated 17th July, 2025 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15
  • Civil Procedure Rules, 2010Order 8 Rule 2
  • Civil Procedure Rules, 2010Order 1 Rule 10
  • Civil Procedure ActSections 1A and 1B

Cases cited (4)

  • Shah V County Government of Trans Nzoia & Another
    Environment and Land Case 11 of 2019 (2025) eKLR
  • Nicholas Kiptoo arap Korir Salat V IEBC & 7 Others
    Supreme Court Application No. 16 of 2014 eKLR
  • Eastern Bakery V Catelino
    (1958) EA 46
  • Prafulla Enterprises Ltd V Norlake Investment Ltd
    Kisumu HCC No. 145 of 1997
Jurisdiction invoked
Civil Procedure Act and Civil Procedure Rules, 2010 (Order 2 Rule 15 invoked by the Applicant; Order 1 Rule 10 applied by the court)

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, "Kipsang & 2 others (Suing for and on Behalf of Themselves & Keres Self Help Group) v Moi & another (Environment and Land Case E027 of 2022) [2025] KEELC 6663 (KLR)", Case Analysis (2025). Not stated in the excerpt (ELC suit; application dated 17th July, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6663/eng@2025-10-02

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