Kardale & 13 others v District Land Adjudication & Settlement Officer, Transmara & 61 others (Environment and Land Case 13 of 2021) [2026] KEELC 4470 (KLR)
The bottom line
#A Kenyan land court allowed a defendant to add a counterclaim to his defence years into a land dispute, and to cross-examine a witness again, while awarding costs against him.
What this practically means
#Executive summary
#Key legal issues
#Whether leave should be granted to amend the 43rd Defendant's statement of defence to plead a counter-claim against the 10th Plaintiff over Transmara/Nkararo/517
The amendment is justified under section 100 of the Civil Procedure Act and meets the principles in the Aquiline Agencies line of authority; no prejudice is caused to other parties as the counter-claim is solely against the 10th Plaintiff.
The court examined the draft amended defence and counter-claim and found that the counter-claim (paragraphs 24 to 29) and its reliefs are directed solely at the 10th Plaintiff, so other parties suffer no prejudice necessitating amendment of their pleadings. Applying the amendment principles, the court found the application made to enable complete adjudication of the true merits, notwithstanding the lateness, and accepted the explanation of changes of counsel.
Whether the 10th Plaintiff (PW2) should be recalled for further cross-examination limited to the counter-claim
Recall is granted because the 10th Plaintiff testified on the parcel claimed but was not cross-examined by counsel for the 43rd Defendant, and the Respondent did not demonstrate hardship.
The court noted that the 10th Plaintiff testified on 10.07.2024 laying claim to Transmara/Nkararo/517 but the record does not show he was cross-examined by counsel then appearing for the 43rd Defendant. Since the counter-claim targets the same parcel, recall limited to the counter-claim issues is necessary, and the Respondent indicated no hardship would be occasioned.
Legal principles established
#- The power to allow amendments is intended to determine the true substantive merits of the case and can be exercised at any stage of the proceedings; a late amendment should generally be allowed if made in good faith and costs can compensate the other side.
Court orders
#- 1.Leave granted to the Applicant/43rd Defendant to file and serve his Amended statement of Defence and counter-claim within 7 days, and to file any additional witness statements and documents within 14 days
- 2.The 10th Plaintiff to file a Reply to defence and defence to counter-claim within 7 days from service, and additional documents and statements within 28 days from today
- 3.The 10th Plaintiff, Mr. Olemeitomei Semeiyio, to be recalled for cross-examination by the 43rd Defendant when the matter is next fixed for hearing, before any other witness takes the stand
- 4.The recall limited to cross-examination on the issues raised in the counter-claim filed by the 43rd Defendant only, and thereafter a re-examination
- 5.Costs of the application awarded to the 10th Plaintiff/Respondent
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 100 of the Civil Procedure Act; Articles 50(1) and 159(2)(d) of the Constitution invoked by the Applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kardale & 13 others v District Land Adjudication & Settlement Officer, Transmara & 61 others (Environment and Land Case 13 of 2021) [2026] KEELC 4470 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 26th May 2026 in a pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4470/eng@2026-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.