Watamu Men Fridays Limited v Attorney General & 4 others (Environment and Land Case E104 of 2019) [2026] KEELC 895 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the National Land Commission is a necessary party to be joined as a defendant
NLC is not a necessary party; no party pleads relief against it and its officers may be summoned as witnesses instead
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.
Whether the court's orders of 25th November 2025 should be reviewed or set aside
No; the order was made on the merits and no Order 45 ground exists; the remedy is appeal
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.
Whether leave should be granted to amend the defence, file a counterclaim and file further documents and witness statements
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
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.
Legal principles established
#- 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
#- 1.The application dated 11th November 2025 is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Hinzano v Pink Properties Ltd & 9 others (Environment and Planning Civil Case E005 of 2025) [2026] KEELC 2817 (KLR)[2026] KEELC 2817 (KLR)12 May 2026
- Muye v Mohamed (Environment and Land Case E053 of 2015) [2026] KEELC 1578 (KLR)[2026] KEELC 1578 (KLR)12 Mar 2026applied
Cite this brief
#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.