Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowed· [2025] KEELC 8385 (KLR)

Ondari & 2 others v Waiharo & 3 others (Environment and Land Case 1 of 2023) [2025] KEELC 8385 (KLR)

Environment and Land Court
3 December 2025
AOA. O. Ombwayo
4,744 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Nakuru (Ombwayo J) determined an application by the 1st Defendant, Simon Ng'ang'a Waiharo, seeking leave to further amend his amended statement of defence so as to plead that the Plaintiffs' suit is time-barred under Sections 4(1)(a) and 4(2) of the Limitation of Actions Act, read with Section 26. The suit concerns the sale in 2000 and 2002 of subdivisions of L.R. Njoro/Ngata Block 1/275, which KENHA identified in 2012 (and formally confirmed in 2020) as encroaching on the Nakuru–Kabarak road reserve. The 1st Defendant argued the amendment raises a pure point of law on limitation and jurisdiction, made in good faith before the close of the Plaintiffs' case. The Plaintiffs opposed, contending that under Section 26 time runs only from discovery of fraud and concealment, and that the application was a belated, dilatory tactic after part-hearing. The court, relying on Order 8 Rules 3(1) and 5(1) of the Civil Procedure Rules and the Court of Appeal decision in Joseph Ochieng' v First National Bank of Chicago, held that the proposed amendment raises a substantial limitation issue rather than a new cause of action, that limitation based on fraud runs from discovery, and allowed the amendment. The 1st Defendant was directed to amend within 10 days, the Plaintiffs to reply within 10 days of service, and the matter was set for mention before the incoming judge. No costs order was recorded.

Key legal issues

#
01

Whether leave to amend a defence to plead limitation should be granted at a part-heard stage

Holding

The court found the amendment sought raises a substantial issue of limitation of time, not a new cause of action, and allowed the application.

Reasoning

Relying on Order 8 Rules 3(1) and 5(1) of the Civil Procedure Rules and the Joseph Ochieng' and Institute for Social Accountability authorities, the court held that amendments may be allowed at any stage if made in good faith and without prejudice. The proposed limitation plea is a point of law anchored on the Plaintiffs' own documents, does not introduce a new cause of action, and the Plaintiffs would have an opportunity to amend their plaint to plead when they discovered the fraud.

p. 8

Legal principles established

#
  • The limitation period on a cause of action based on fraud begins running when the fraud is discovered.

Court orders

#
  1. 1.Leave granted to the 1st Defendant to amend its defence; application allowed as prayed
  2. 2.The 1st Defendant to amend its defence within 10 days
  3. 3.The Plaintiffs to file a reply to the amended defence within 10 days of service
  4. 4.Matter to be mentioned before the incoming judge on 2nd March 2025 for further directions
Jurisdiction invoked
Order 8 Rule 3(1) and Order 8 Rule 5(1) of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ondari & 2 others v Waiharo & 3 others (Environment and Land Case 1 of 2023) [2025] KEELC 8385 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8385/eng@2025-12-03

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