Cheluget (Suing as the Administrator of the Estate of David Kiptoo Cheluget - Deceased) v Cheluget & 2 others (Environment and Land Case 115B of 2020) [2026] KEELC 518 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to strike out a late-filed amended lawsuit, but the litigant who filed it late still had to pay the legal costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for striking out the Amended Plaint is merited
- 2.Whether this court has power to extend time and validate the Amended Plaint filed on 24th July, 2025
- 3.Who shall bear the costs of the application?
Key legal issues
#Whether the Amended Plaint filed 40 days outside the court-ordered 30-day period should be struck out
The application to strike out was refused. Striking out is a draconian, discretionary remedy; the Amended Plaint disclosed a cause of action with triable issues, and striking it out would abate the suit and deny the substituted plaintiff her day in court.
The court applied Order 15 Rule 2 of the Civil Procedure Rules and the DT Dobie principle that a court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. The court found the Plaint disclosed a cause of action with triable issues. It also noted the Defendants could have mitigated the delay by disclosing that they had already petitioned for letters of administration over the estate of Anna Cheluget, which contributed to the Plaintiff's justified delay.
Whether the court has power to extend time and validate the Amended Plaint filed out of time without leave
The court held it had power under Section 95 of the Civil Procedure Act, Order 50 Rule 6 and Order 8 Rule 6 of the Civil Procedure Rules, read with Sections 1A, 1B and 3A and Article 159(2)(d), to extend time and validate the Amended Plaint, and did so.
Relying on the Salat principles, the court found the delay was reasonably explained by the need to resolve representation of the estate of Anna Cheluget, to which the Defendants' own non-disclosure contributed. The Defendants would suffer no real prejudice since the suit had not been set down for hearing and the amendments merely reflected substitution and joinder. Article 159(2)(d) and the overriding objective favoured validation over striking out.
Who shall bear the costs of the applications
The Plaintiff was ordered to bear the costs of both applications notwithstanding her success, because her delay necessitated the applications.
Guided by Section 27 of the Civil Procedure Act, costs ordinarily follow the event but the court retains discretion to order otherwise for good reason. Although the Plaintiff succeeded on both applications, the court found her delay in filing the Amended Plaint out of time was the reason the applications became necessary, and therefore exercised its discretion against her on costs.
Legal principles established
#- The power to strike out pleadings is discretionary, not mandatory, and is reserved for the most serious procedural abuses
- A court may extend time even after the period fixed has expired, under Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules
- Striking out an Amended Plaint filed late after substitution of a deceased plaintiff would have the effect of abating the entire suit and denying the plaintiff her day in court
- Filing an amended response in answer to late amendments is an exercise of the right to be heard, not legally cognizable prejudice
Court orders
#- 1.The 1st and 2nd Defendants' Notice of Motion Application dated 29th September, 2025 is not merited and the same is hereby dismissed.
- 2.The time for filing the Amended Plaint is hereby extended, and the Amended Plaint dated 23rd July, 2025 and filed on 24th July, 2025 is hereby validated and admitted into the record.
- 3.The Plaintiff shall bear the costs of these applications.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 95 and 27 of the Civil Procedure Act; Section 19 of the Environment and Land Court Act; Articles 48, 50(1) and 159(2)(d) of the Constitution of Kenya, 2010
Relief refused
#Costs of the applications in favour of the Plaintiff
Although the delay was justified, the applications were necessitated by the Plaintiff's own delay in filing the Amended Plaint out of time
Costs
The Plaintiff shall bear the costs of these applications (both the Defendants' application dated 29th September 2025 and the Plaintiff's application dated 25th November 2025).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
a. The 1st and 2nd Defendants' Notice of Motion Application dated 29th September, 2025 is not merited and the same is hereby dismissed.
b. The time for filing the Amended Plaint is hereby extended, and the Amended Plaint dated 23rd July, 2025 and filed on 24th July, 2025 is hereby validated and admitted into the record.
c. The Plaintifi shall bear the costs of these applications.
Courts have expressed that striking out pleadings is a powerful, drastic remedy that they are reluctant to use, and that it is an action reserved for the most serious procedural abuses.
Article 159(2)(d) of the Constitution directs that in the exercise of judicial authority, courts are to ensure that justice is administered without undue regard to procedural technicalities
It is not lost on me that if I allow the striking out of the Amended Plaint, the suit herein will have abetted since the original Plaintifi died on 15th June, 2024.
I am well aware that Article 159(2)(d) does not provide an automatic cure for all procedural deficiencies and/or technicalities.
Issues in the judgment
#The judgment inconsistently records the date of the order requiring the Amended Plaint as 15th May 2025 in some passages and 15th May 2015 in another, an apparent typographical error.
The judgment refers to substitution proceedings under 'Order 24 Rule of the Civil Procedure Act', an incomplete citation and a mislabeling of rules under the Act rather than the Rules.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheluget (Suing as the Administrator of the Estate of David Kiptoo Cheluget - Deceased) v Cheluget & 2 others (Environment and Land Case 115B of 2020) [2026] KEELC 518 (KLR)", Case Analysis (2026). ELC Case (Eldoret), Amended Plaint dated 23rd July 2025 - Ruling on Notices of Motion dated 29th September 2025 and 25th November 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/518/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.