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ELCAllowedNot stated in the judgment· [2026] KEELC 2312 (KLR)

Association (Suing through its Officials Isaac Kimulu - Chairman, robert Mugo wa Karanja - Treasurer, Susan Wanjiku Ngigi- Secretary) v Tutui & 2 others (Environment and Land Case E001 of 2020) [2026] KEELC 2312 (KLR)

Environment and Land Court
28 April 2026
1,144 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a defendant to amend their defence and counterclaim years into a case, because no one would be unfairly prejudiced.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (A. Y. Koross, J) determined a notice of motion dated 28 November 2023 filed by the 1st defendant under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules. The 1st defendant sought leave to amend her statement of defence dated 28 September 2020 and her counterclaim, to file a supplementary list of documents, and to have the draft amended defence and counterclaim deemed duly filed upon payment of court fees. The plaintiff, through the replying affidavit of James Kambo, opposed the motion on three grounds: that it was filed late contrary to Order 8 Rule 5; that the amendments introduced new issues and a fresh cause of action through the counterclaim; and that the supplementary list of documents amounted to introduction of new evidence. The court framed a single issue - whether the motion was merited. Applying Order 8 Rule 5(1) and judicial precedent on amendment of pleadings, the court held that the decision to grant leave is discretionary; that amendments are generally permitted at any stage where no injustice or prejudice results; that the proposed amendments introduced no new issues or fresh cause of action; that any delay was immaterial as proceedings remained alive and the plaintiff could file an amended plaint; and that the additional documents were pertinent to the counterclaim since the matter had not proceeded to full hearing. The motion was allowed with costs in the cause, and directions were issued for filing of amended pleadings, supplementary documents and a compliance mention.

Key legal issues

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01

Whether the 1st defendant should be granted leave to amend the defence and counterclaim and file a supplementary list of documents

Holding

The motion was merited; the amendments introduce no new cause of action, any delay is immaterial while proceedings remain alive, and the plaintiff suffers no prejudice since it may file an amended plaint.

Reasoning

The court applied Order 8 Rule 5(1) and precedent establishing that amendment is discretionary and generally allowed at any stage to determine the real questions in controversy, provided no prejudice or new cause of action arises. It found the plaintiff's objections frivolous, held the amendments sought particulars of special loss rather than fresh issues, and noted the matter had not proceeded to full hearing. Any prejudice could be offset by costs.

p. 5
02

Whether the supplementary list of documents amounts to introduction of new evidence

Holding

The documents are pertinent to substantiating the counterclaim and will aid a just resolution; the plaintiff will not be prejudiced as leave is granted for supplementary documents.

Reasoning

Because the matter had not yet proceeded to full hearing, the court held the additional documents were relevant to the counterclaim and significant to a just and equitable resolution, and that any concern was met by granting leave to all parties to file supplementary lists and bundles.

p. 6

Legal principles established

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  • The decision to grant or deny leave to amend pleadings is discretionary, and amendments are generally permitted at any stage provided no injustice or prejudice is caused to the opposing party.

Court orders

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  1. 1.The 1st defendant shall, within 21 days of the date hereof, file and serve the amended defence and counterclaim on all the parties.
  2. 2.Thereafter, the other parties shall be at liberty to file their amendments within 21 days of service.
  3. 3.All parties are hereby granted leave to file supplementary lists of documents within 45 days hereof and to file and serve an indexed and paginated supplementary bundle of documents.
  4. 4.A mention date shall be issued to confirm compliance.
  5. 5.Costs shall be in the cause.
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules

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, "Association (Suing through its Officials Isaac Kimulu - Chairman, robert Mugo wa Karanja - Treasurer, Susan Wanjiku Ngigi- Secretary) v Tutui & 2 others (Environment and Land Case E001 of 2020) [2026] KEELC 2312 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2312/eng@2026-04-28

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