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ELCDismissedELC No. 4 of 2019 (Consolidated with Malindi ELC No. 104 of 2019)· [2026] KEELC 895 (KLR)

Watamu Men Fridays Limited v Attorney General & 4 others (Environment and Land Case E104 of 2019) [2026] KEELC 895 (KLR)

Environment and Land Court
17 February 2026
6,141 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 in Malindi dismissed Seven Islands Watamu's bid to add the National Land Commission, amend its defence and delay the trial, citing unexplained delay and a contempt record.

What this practically means

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Executive summary

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The applicant, Seven Islands Watamu Limited (5th defendant in consolidated Malindi ELC No. 4 of 2019 and ELC No. 104 of 2019), sought leave by a motion dated 11th November 2025 to join the National Land Commission as a defendant, to file a counterclaim alleging the plaintiffs' titles were fraudulently obtained, to review or vary the court's orders of 25th November 2025 disallowing its oral application to amend, and to amend its defence and file further witness statements and documents. Both plaintiffs opposed, contending the pleadings closed in 2020, the plaintiffs' case closed in February 2024, no claim lies against NLC, and the application was a belated, tactical attempt to delay a defence hearing fixed for 25th February 2026. The court framed five issues. On joinder, applying Order 1 rule 10(2) and Erdemann Property, it held NLC was not a necessary party since no party framed relief against it and its officers could be summoned as witnesses. On review, it held the 25th November 2025 order was made on the merits, no Order 45 ground existed, and the remedy lay in appeal - though a fresh formal application was not barred by res judicata. On amendment and counterclaim, the court found the delay inordinate, unexplained and, coupled with the applicant's contempt record (its director having been fined Kshs. 300,000 on 24th November 2025), disentitling; the amendments would render recorded proceedings otiose and precipitate a de novo hearing. The application was dismissed with costs and the defence hearing date preserved.

Key legal issues

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01

Whether the National Land Commission is a necessary party to be joined as a defendant

Holding

NLC is not a necessary party; no party pleads relief against it and its officers may be summoned as witnesses instead

Reasoning

Under Order 1 rule 10(2), joinder requires a right to relief against the party and necessity for complete adjudication. None of the plaintiffs sued NLC or prayed anything against it, and the applicant did not indicate it would frame a counterclaim against it. Joining NLC would render it a mere spectator or require the plaintiffs to amend their plaints to plead a case they deny having. NLC's gazetted findings cannot substitute judicial determination.

p. 7
02

Whether the court's orders of 25th November 2025 should be reviewed or set aside

Holding

No; the order was made on the merits and no Order 45 ground exists; the remedy is appeal

Reasoning

The refusal of the oral application was a decision on the merits: leave to amend at an exceedingly late stage ought to be sought formally so the adversary sees the drafts; granting unseen amendments orally over objection would be an ambush. There is no discovery of new and important matter, no error apparent on the face of the record and no other sufficient reason under Order 45. However, since oral and formal applications are mutually exclusive, the present formal application is not barred by res judicata.

p. 7
03

Whether leave should be granted to amend the defence, file a counterclaim and file further documents and witness statements

Holding

No; the delay is inordinate and unexplained, and the applicant's contumacious conduct (culminating in a contempt conviction of its director) disentitles it to the discretionary relief

Reasoning

Although amendments are freely allowed where they facilitate just determination without injustice, the applicant has been in the litigation since inception, knew of the adjudication-section complexities when filing its defence in 2022, and moved only after the plaintiffs closed their case and with the defence hearing date looming. The amendments would reopen pleadings, render recorded proceedings otiose and force a de novo hearing. The applicant's history of contempt, including its director's fine of Kshs. 300,000, colours every subsequent step and no bona fides are shown.

p. 10

Legal principles established

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  • A party against whom no one is ready to frame a claim, and who is useful only as a witness, should not be joined as a defendant; such a person may instead be summoned as a witness.
  • An oral application and a formal application are two mutually exclusive means of moving the court; failure of an earlier oral application does not bar a subsequent formal application on res judicata grounds.
  • A party's prior wilful obstruction of justice, such as a contempt finding, tints every subsequent application and exacts a heavy burden of proving bona fides.
  • Inordinate and unexplained delay, particularly at an advanced stage of trial where the amendment would occasion prejudice or a de novo hearing, defeats leave to amend pleadings notwithstanding the overriding objective.

Court orders

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  1. 1.The application dated 11th November 2025 is dismissed with costs
  2. 2.26th February 2026 remains preserved for defence hearing in the suit
Jurisdiction invoked
Inherent and procedural jurisdiction under the Civil Procedure Act (ss. 1A, 1B, 80, 100) and Order 1 rule 10(2) and Order 45 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Watamu Men Fridays Limited v Attorney General & 4 others (Environment and Land Case E104 of 2019) [2026] KEELC 895 (KLR)", Case Analysis (2026). ELC No. 4 of 2019 (Consolidated with Malindi ELC No. 104 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/895/eng@2026-02-17

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