Khaemba & 87 others v Fedha & 4 others; Land Registrar Trans Nzoia County (Interested Party) (Environment and Land Case 33 [E029] of 2021) [2026] KEELC 1253 (KLR)

7060/1. The 4th and 5th defendants depose that there is a need to amend the notice of claim to refiect those facts and also the reliefs sought. 3. Order 8 Rule 5 of the Civil Procedure Rules provides that the court may, either of its own motion or on an application by any party, order any document to be amended in such manner as it directs, on such terms as it may be just for the purpose of determining the real questions in controversy, between the parties or to correct any defect or error in any proceedings. 4. In Institute for Social Accountability & another -vs- Parliament of Kenya & 2 others; Commission for the Implementation of the Constitution (Interested Party) [2014] KEHC 7356 (KLR), the court held that the object of the amendment of pleading is to enable parties to alter their pleadings, to ensure that the litigation between them is conducted not on the false hypotheses of the facts already pleaded, or the relief or remedy already claimed, but rather based on the true state of facts which the parties really and finely intended to rely on, to make the function of the court more efiective in determining the substantive merits of the case. 5. Ordinarily, courts do allow amendment of pleading unless there is undue delay, a new or inconsistent cause of action being introduced, and where no vested interests or accrued legal right is afiected, or injustice is likely to be visited upon the opposite parties. 6. In Joseph Ochieng & 2 others T/A Aquiline Agencies -vs- First National Bank of Chicago [1995] KECA 31 (KLR), the court said that an application for amendment should be made timeously, and the power to amend can be exercised at any stage of the proceedings. That, as a general rule, however late it is made, it should be allowed if made in good faith, the proposed amendment should not be immaterial, and that a plaintifi will not be allowed to reframe his case. See Central (K) Ltd -vs- Trust Bank Ltd [2000] EA 365. 7. In this application, the 4th and 5th defendants invoke the doctrine of new and important material which they had not laid their hands on when they first filed their notice of claim against the co-defendant. The nature source, time of discovery, and the particulars of those new facts through either oficial search certificates, copies of records, a mutation form, or title deeds for the 96 subdivisions of the suit property, have not been disclosed or copies attached to the supporting afidavit. 8. A party that alleges discovery of new and important material has to disclose when they made the discovery and the relevance of the said material(s). The court cannot act on speculations or suppositions. 9. In such a case as this, the disclosure of the said material could have enabled the court to know when exactly those new subdivisions were made, the persons or the beneficiaries through transfer, registration, or allocation, other than the parties who are before this court, so that directions may be given conclusively on joinder or addition of new parties. 10. As much as the draft notice of claim has alleged, there was a conversion of L.R. No. 7060/1 from the repealed Registration of Titles Act to the Land Registration Act regime, and new subdivisions thereof on 21/11/2011, to Kiminini/Kiminini Block 10/Mbao A, 1-92; evidence of such conversion or subdivisions has not been availed. Further, the 4th and 5th defendants allege that the said changes occurred on 21/11/2011. The delay of close to over 10 years has not been explained. 11. Amendments cannot be allowed to take away an accrued legal right or vested interest, or to deprive a party to the suit of a right to rely on the Limitation of Actions Act. In James Ochieng' Oduol T/ A Ochieng Oduol & Co. Advocates -vs- Richard Kuloba [2008] KECA 53 (KLR), the court held that where an amendment of pleadings would result in the defeat of a defense of limitation of time, it https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1253/eng@2026-03-04 2

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would not generally be allowed, except in very peculiar circumstances. In this application, the 4th and 5th defendants do not exhibit such peculiar circumstances. 12. Between 2011 and 2021, when the suit was filed against them, there is no evidence why, within the use of due diligence, they did not know that there had been the alleged conversion of title and subdivision of the new block. The delay is not only unreasonable but unexplained. 13. In Mbuthi -vs- Karanja Civil Appl. E347 of 2023, the court said that an amendment ought to be made within a reasonable time; otherwise, a late amendment amounts to an abuse of the court process. Acting in good faith is what is required of an applicant. An amendment aimed at repairing an omission due to negligence or carelessness, which would amount to injustice or prejudice on the other side, may not be allowed. See Andrew Webuyele Biketi -vs- Chinese Centre for Promotion of Investment Development Trade & others[2015] KEHC 81181 KLR. 14. In view of the foregoing, the court finds the application dated 13/11/2025 lacking merit. It is dismissed with no order as to costs. 15. Orders accordingly. RULING DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 4TH DAY OF MARCH 2026. In the presence of: Court Assistant Dennis Miss Munyoki for Ndegwa for the 4th and 5th defendants/applicants present Miss. Mukanda for Nakitare for the plaintifi present Nabwile for the 1st and 2nd defendants present Musonye for the 3rd defendant present HON. C.K. NZILI JUDGE, ELC KITALE. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1253/eng@2026-03-04 3

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