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ELCAllowedELCLC NO. E132 OF 2026

Juliette Mugambi & Another v Summerville Properties Limited

Environment and Land Court
30 September 2026
MOM. A. Odeny
2,189 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, Juliette Mugambi and Mugambi Mwendwa, sued Summerville Properties Limited over development on plot L.R. No. 28428/80, alleging it contravened their right to quiet possession of their property, Villa 33 on L.R. No. 12825/196 in Five-Star Paradise Estate, and seeking a declaration, permanent injunction, special damages of Kshs. 51,000, general damages, interest and costs. By Notice of Motion dated 28th January 2026 they sought leave to amend the Plaint, deponing that circumstances had changed following issuance on 13th November 2025 of authority for structural retrofitting and repair works on their property. The Respondent opposed through grounds of opposition and a replying affidavit, arguing the application was frivolous, brought in bad faith, came after certification for hearing, and sought to introduce an entirely new cause of action. The Applicants relied on Orders 8 Rules 3(1) and 5(1) of the Civil Procedure Rules, Halsbury's Laws of England, and case law including Daykio Plantations and St Patrick's Hill School, contending the amendments arose from the same facts. The court framed one issue: whether the Applicants met the threshold for leave to amend. Applying Order 8 Rule 5, Halsbury's, and the Ochieng principles as approved in St Patrick's Hill School, the court held the amendments arose from the same factual background, did not introduce a new cause of action, and that certification for hearing did not oust jurisdiction, no prejudice having been demonstrated. The application was allowed with the amended Plaint to be filed and served within 7 days and any amended Defence within 7 days of service; costs were to be in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiffs/Applicants have met the threshold for leave to amend the Plaint

Key legal issues

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01

Whether the proposed amendments introduce a new cause of action

Holding

The amendments do not introduce a new cause of action; they arise from the same construction activities underlying the original suit and merely particularise consequences suffered

Reasoning

The original cause of action arose from construction on L.R. No. 28428/80 affecting the Plaintiffs' property. The proposed amendments concern expenses for alternative accommodation and repairs flowing from the same activities, which occurred while the case was pending. The amendment confers no automatic advantage, as the Plaintiffs must still prove their case on a balance of probabilities.

p. 9
02

Whether the lateness of the application (matter certified ready for hearing) bars the amendment

Holding

Lateness does not oust the court's jurisdiction; amendments may be allowed at any stage before judgment where no prejudice is demonstrated

Reasoning

The Respondent argued the application came after certification for hearing and would delay the suit. The court held this contradicts the purpose of amendment, that certification does not remove jurisdiction, and that this was an opportune moment since hearing had not commenced. No prejudice was demonstrated by the Respondent.

p. 8

Legal principles established

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  • Amendments to pleadings may be made at any time before judgment with sufficient cause, provided no prejudice is caused to the opposing party
  • An amendment adding or substituting a new cause of action is permissible if it arises out of the same or substantially the same facts as a cause of action already claimed

Court orders

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  1. 1.The Notice of Motion dated 28th January, 2026 is allowed as prayed
  2. 2.The Plaintiff is to file and serve the amended Plaint within 7 days
  3. 3.The Respondent is to file an amended Defence, if need be, within 7 days upon service

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MO
majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; Article 159(2)(d) of the Constitution of Kenya, 2010 invoked on procedural technicalities

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Consequently, I find that the Notice of Motion dated 28 th January, 2026, has merit and is therefore allowed as prayed. The Plaintiff is to file and serve the amended Plaint within 7 days; the Respondent is to file an amended Defence, if need be, within 7 days upon service.
p. 9Final orders - amendment allowed
This would be a perfect time to allow the amendment before the commencement of the hearing of the suit.
p. 8Timing of amendment
The amendment will not automatically give the plaintiffs an advantage, as the plaintiffs must prove their case on a balance of probabilities.
p. 9No automatic advantage from amendment
The person applying for amendment must be acting in good faith.
p. 6Good faith requirement (Halsbury's)

Issues in the judgment

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minor

Property location inconsistently described across the judgment

minor

Chronology anomaly: suit numbered E132 OF 2026 with motion dated January 2026 decided September 2026

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, "Juliette Mugambi & Another v Summerville Properties Limited", Case Analysis (2026). ELCLC NO. E132 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5947/eng@2026-09-30

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