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ELCOtherNot stated in the judgment (application dated 19/11/2025 within an existing suit)· [2026] KEELC 995 (KLR)

Ethics and Anti-Corruption Commission v Nesco Services Limited & 4 others (Environment and Land Case E211 of 2023) [2026] KEELC 995 (KLR)

High Court of Kenya (court name not expressly stated in the excerpt)
19 February 2026
1,823 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's High Court refused to strike out a late-filed amended lawsuit because a Kshs 30,000 costs award could compensate the delay.

What this practically means

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Executive summary

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The 1st and 2nd Defendants applied under Section 1A & 3 of the Civil Procedure Act and Order 8 Rule (2) & (6) of the Civil Procedure Rules to strike out and/or disallow the Plaintiff's amended Plaint dated 6/11/2025 on the ground that it was filed outside the period permitted. Leave to amend had been granted by a Ruling delivered on 9/10/2025, with the amended Plaint due within 14 days, expiring on 27/10/2025. The Plaintiff served an amended Plaint on 10/11/2025, a delay of about 16 days, which it attributed to the resignation of the lead Investigation Officer without notice or a proper handover of the investigation files. The Plaintiff urged that the suit concerned the recovery of public property, that no prejudice would befall the Defendants, and that Article 159(2) of the Constitution required justice to be administered without undue regard to procedural technicalities. Justice J. G. Kemei framed two issues: whether the Amended Plaint should be struck out, and who should bear the costs. Setting out the law under Order 2 Rule 15(1) and the settled principles in D. T. Dobie and Blue Shield that striking out is draconian and must be used sparingly, the court held that although the delay was prejudicial and the Plaintiff should have sought an extension of time, the Defendants had not yet filed an amended Defence and, given the public interest element of the suit, an award of costs would adequately compensate them. The court directed the Plaintiff to pay the Defendants' throwaway costs of Kshs 30,000/= within fourteen days, and ordered that the amended Plaint stand and not be struck out. Ruling delivered at Nairobi on 19 February 2026 via Microsoft Teams.

Key legal issues

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01

Whether the Amended Plaint filed out of time should be struck out

Holding

The amended Plaint was allowed to stand despite being filed about 16 days outside the permitted period, with throwaway costs of Kshs 30,000 awarded to the Applicants.

Reasoning

The court accepted that the delay was prejudicial and that the Plaintiff ought to have sought an extension of time. However, applying Order 8 Rule 6 (which preserves the court's power to extend the period) and Article 159(2)(d) of the Constitution, and weighing the absence of an amended Defence by the Applicants and the public interest in the recovery of public property, the court found the prejudice compensable by costs and declined the draconian remedy of striking out.

p. 4
02

Who should bear the costs of the application

Holding

The Plaintiff was directed to pay the Applicants' throwaway costs of Kshs 30,000/= within fourteen days.

Reasoning

Although the application failed, the Plaintiff's non-compliance inconvenienced both the court and the Applicants, who were preparing for an expeditious trial. The court held the Plaintiff must bear responsibility for the delay and could not go scot-free, since failure to penalise the omission would be a miscarriage of justice against the Applicants.

p. 4

Legal principles established

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  • Where a party fails to file an amended pleading within the period specified in an order giving leave to amend, the order ceases to have effect, but without prejudice to the court's power to extend the period.
  • In deciding whether to exercise its discretion in favour of a party who has failed to file amended pleadings within the stipulated period, the court must consider the prejudice the opposing side would suffer and whether such prejudice can be compensated by costs.
  • The power to strike out a pleading must be exercised with the greatest care and circumspection, and only in the clearest of cases.

Court orders

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  1. 1.The amended Plaint shall stand and shall not be struck out
  2. 2.The Plaintiff is directed to pay the Applicants' throwaway costs in the sum of Kshs 30,000/= within fourteen (14) days of the date of the ruling

Authorities

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Legislation

  • Civil Procedure ActSections 1A & 3
  • Civil Procedure Rules, 2010Order 8 Rule (2) & (6)
  • Civil Procedure Rules, 2010Order 2 Rule 15(1)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (4)

  • D. T. Dobie & Company (K) Ltd. v Joseph Mbaria Muchina & Another
    [1982] KLR 1
  • Blue Shield Insurance Company Ltd v. Joseph Mboya Oguttu
    [2009] eKLR
  • Cail Zeiss Stiftung v Ranjuer & Keeler Ltd and others (No.3)
    (1970) ChpD 506
  • Prafulla Enterprises Ltd v Norlake Investments Ltd
    Kisumu High Court Civil Case No. 145 of 1997; LLR 7412 (HCK)
Jurisdiction invoked
Inherent powers under Section 1A & 3 of the Civil Procedure Act and Order 8 Rule (2) & (6) of the Civil Procedure Rules (application as brought)

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, "Ethics and Anti-Corruption Commission v Nesco Services Limited & 4 others (Environment and Land Case E211 of 2023) [2026] KEELC 995 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 19/11/2025 within an existing suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/995/eng@2026-02-19

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