Seset & 2 others (Suing as the legal representatives of the Estate of Chebor Kiprop Kalikwon) v Psinen (Environment and Land Case E025 of 2024) [2026] KEELC 1018 (KLR)
The bottom line
#Kenya's Environment and Land Court refused a landowner's late attempt to change his legal defence after the other side finished presenting evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether an amendment introducing a new cause of action (trust in place of adverse possession) should be allowed after the close of the plaintiffs' case
The amendment was refused because it sought to substantially alter the defence by introducing new facts and a new claim not previously pleaded, after evidence had closed
The court examined the proposed amended defence and counterclaim and found it introduced extensive new facts and new prayers that were within the defendant's knowledge from the outset and not captured in the earlier pleadings or witness statements. It could not be attributed to a mistake by former counsel. The court reasoned that the amendment was designed to repair or fill gaps in the defence after the plaintiffs had closed their case, which is a misuse of the amendment jurisdiction.
Whether the mistake of counsel justified the application
The court rejected the claim that the omission was counsel's mistake, since the new facts were all within the defendant's own knowledge
The defendant blamed a miscommunication with his former advocate. The court found this implausible because all the facts sought to be introduced were known to the defendant himself and could have been pleaded when the defence and witness statements were originally filed. Reliance was placed on Belinda Murai & Others v Amos Wainaina on mistakes of counsel.
Whether the delay and timing of the application should disallow the amendment
The delay was unexplained and the application, coming only after the plaintiffs' case closed and after adjournments, disentitled the defendant to the discretionary relief
The court traced the procedural history: the plaintiffs' case closed on 18/9/2025, the defendant sought adjournments, and the application was filed only after the plaintiffs' own amendment application was declined. Following Eastern Bakery v Castelino and the case law on good faith and delay, the court held that amendments before hearing should be freely allowed, but late amendments repairable only at the risk of injustice and prejudice to accrued rights should be refused.
Legal principles established
#- Amendments sought after evidence has been adduced and a party's case closed may amount to an abuse of the court process
- While courts have power to allow amendments, the applicant must show good faith and must not be filling gaps in the case
- The right to amend is not absolute and depends on the discretion of the court
Court orders
#- 1.The prayers sought in the application dated 1/12/2025 (leave to amend the defence, trial de novo, or recall of the plaintiffs' witnesses) are declined
- 2.The application is dismissed with costs to the plaintiffs
- Jurisdiction invoked
- Inherent jurisdiction and Order 8 Rules 3 and 5 of the Civil Procedure Rules (amendment of pleadings)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Seset & 2 others (Suing as the legal representatives of the Estate of Chebor Kiprop Kalikwon) v Psinen (Environment and Land Case E025 of 2024) [2026] KEELC 1018 (KLR)", Case Analysis (2026). Not stated in the ruling (being the suit in which the application dated 1/12/2025 was filed). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1018/eng@2026-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.