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ELCPartially AllowedELC NO. 73 OF 2021

James Oluoch Ogando v Kenya Ports Authority Pension Scheme (Defined Benefits) & another

Environment and Land Court
8 October 2026
1,192 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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The court let a pension scheme dispute proceed with an amended claim, but refused the injunction and document orders because the wrong legal procedures were used.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court on the plaintiff's notice of motion dated 07.12.2024, brought under Order 8 rule 3 of the Civil Procedure Rules and Section 100 of the Civil Procedure Act. The plaintiff sought leave to further amend his plaint, referral to Court Annexed Mediation, a permanent injunction restraining the 1st defendant (Kenya Ports Authority Pension Scheme) from selling properties belonging to the 2nd defendant (Kenya Ports Authority), and orders for production of the Rubyland Ltd final report and various lists of properties and employee housing. The 1st defendant opposed through a replying affidavit; the 2nd defendant filed grounds of opposition contending the application was vexatious and an abuse of process, and that a permanent injunction cannot issue at the interlocutory stage. The court framed four questions and held: (1) leave to amend should be freely allowed where necessary to determine the real issues, applying Central Kenya Limited v Trust Bank Limited, and the policy against litigation by instalments favoured granting leave despite prior amendments; (2) a permanent injunction could not issue interlocutorily, no irreparable loss was deposed to in the plaintiff's bare affidavit, and the properties belong to the 1st defendant which had not sought protection; (3) production of documents and information could not be sought under provisions dealing only with amendment of pleadings and documents - the plaintiff had to follow due process under the Civil Procedure Act/Rules or the Access to Information Act. Leave to amend was granted with 14 days to file and serve the further amended plaint; all other orders were refused with costs of the application to the plaintiff.

Questions the Court framed

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

  1. 1.Whether the plaintiff is entitled to leave to amend the plaint further.
  2. 2.Whether the plaintiff is entitled to the permanent injunction sought.
  3. 3.Whether the plaintiff is entitled to the production order on the final report by Rubyland Ltd.
  4. 4.Whether the plaintiff is entitled to an order for provision of the information sought.

Key legal issues

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01

Whether leave to amend the plaint further should be granted despite prior amendments

Holding

Leave granted; prior amendment is not a bar where the amendment is necessary for determination of the real issues in controversy

Reasoning

The court applied the settled principles in Central Kenya Limited v Trust Bank Limited: amendments before hearing should be freely allowed absent undue prejudice not compensable by costs. The primary consideration is necessity for determining the real issues. The policy against litigation by instalments favoured allowing the plaintiff to bring his whole case once and for all.

p. 4
02

Whether a permanent injunction could issue at the interlocutory stage

Holding

Refused - a permanent injunction requires full adjudication of rights; no irreparable loss was deposed to, and the properties belong to the 1st defendant which has not sought protection

Reasoning

The court gave three reasons: permanent injunctions issue only after a full hearing determines the parties' rights; the plaintiff's bare four-paragraph affidavit did not show irreparable loss not compensable by damages; and the properties sought to be protected belong to the 1st defendant, which has legal capacity to protect its own interests and has not sought such protection.

p. 4
03

Whether production of documents and information could be sought under Order 8 rule 3 and Section 100 of the Civil Procedure Act

Holding

Refused - those provisions deal only with amendment of pleadings and documents; the plaintiff must use the proper mechanisms under the Civil Procedure Act/Rules or the Access to Information Act

Reasoning

The court agreed with the defendants that due process and specific legal mechanisms must be followed for obtaining documents and information. Order 8 rule 3 and Section 100 only govern amendment of pleadings and documents. If the plaintiff intended to invoke the Access to Information Act, he had to follow the procedures established under that Act.

p. 5

Legal principles established

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  • Leave to amend a pleading before hearing should be freely allowed where the amendment is necessary for determination of the real issues and causes no undue prejudice compensable by costs
  • The policy of the law is to discourage litigation by instalments; parties should bring their entire case before the court once and for all
  • A permanent injunction cannot issue at the interlocutory stage; it requires adjudication of rights upon a full hearing

Court orders

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  1. 1.Leave be and is hereby granted to the plaintiff to amend his plaint further.
  2. 2.The plaintiff shall file and serve the further amended plaint within 14 days from the date hereof.
  3. 3.The rest of the orders sought in the motion are hereby refused.
  4. 4.Costs of the application to be borne by the plaintiff.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application brought under Order 8 rule 3 of the Civil Procedure Rules and Section 100 of the Civil Procedure Act

Relief refused

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Referral of the dispute to Court Annexed Mediation

Not addressed in the court's analysis; falls within the 'rest of the orders sought' which were refused

p. 6

Permanent injunction to restrain the 1st defendant from selling properties belonging to the 2nd defendant

A permanent injunction can only issue after full hearing; no irreparable loss shown; properties belong to the 1st defendant which has capacity to protect its own interest

p. 4

Order for the 1st defendant to provide a copy of the final report by Rubyland Ltd

Plaintiff must follow due process under the Civil Procedure Act/Rules or the Access to Information Act; cannot seek production under Order 8 rule 3 or Section 100

p. 5

Orders for lists of properties sold by public tender and residential houses occupied by employees since 2002

Same as the production order - no case made out; proper legal mechanisms not followed

p. 5

Costs

Costs of the application to be borne by the plaintiff.

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.

The primary consideration is whether or not the amendment sought is necessary for the determination of the real issues in controversy.
p. 4Principles for leave to amend pleadings
The policy of the law is to discourage litigation by instalments.
p. 4Avoiding piecemeal litigation
a permanent injunction can only be issued upon adjudication of the dispute whereby the rights of the parties have been determined upon a full hearing.
p. 4Permanent injunctions not available interlocutorily
The plaintiff cannot simply seek such documents and information under Order 8 rule 3 of the Civil Procedure Rules or Section 100 of the Civil Procedure Act which only deal with amendment of pleadings and amendment of documents.
p. 5Due process for production of documents
Leave be and is hereby granted to the plaintiff to amend his plaint further.
p. 6Final orders - leave granted
The rest of the orders sought in the motion are hereby refused.
p. 6Final orders - refusal of remaining reliefs
Costs of the application to be borne by the plaintiff.
p. 6Final orders - costs

Issues in the judgment

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minor

Court station inconsistency: cause title Mombasa, delivery at Thika

material

Parties/assets reversed in injunction analysis versus relief sought

minor

Chronology anomaly: grounds of opposition dated 28.02.2025 predate replying affidavit sworn 24.02.2026

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, "James Oluoch Ogando v Kenya Ports Authority Pension Scheme (Defined Benefits) & another", Case Analysis (2026). ELC NO. 73 OF 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6320/eng@2026-10-08

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