Waweru & 4 others v Hardrock Holdings and Investments Company Limited & 2 others (Land Case E372 of 2024) [2026] KEELC 3531 (KLR)

2. The application is premised on the grounds on its face. It is further supported by the afidavit of the 2nd defendant/applicant sworn on even date. He deposed that he had purchased and deposited on the suit property stones, sand and ballast for purposes of construction. Further, he deposed that the plaintifis/ respondents have since impeded his access to the suit property and appropriated his building materials in disregard to the status quo orders issued on 25th September, 2024. 3. The 2nd defendant/applicant deposed that as a result, he has since lost his building materials and therefore it is necessary to efiect an amendment to the counterclaim seeking the appropriate remedy for the loss of the building materials. He deposed that it was in the interest of justice to allow him bring out the whole claim for the efiectual and speedy determination of the real issues between the parties. He added that the plaintifis/respondents shall not sufier any prejudice if the orders sought are granted since similar leave shall apply to them to file and serve an amended reply to the same. 4. The application was opposed vide the replying afidavit of the 1st plaintifi/respondent sworn on 23rd February, 2026. He deposed that the amended defence and counterclaim sought to introduce new issues at an advanced stage of the case. He added that plaintifis/respondents main witness had already testified, completed examination-in-chief, undergone cross-examination and partially re-examined. 5. The 1st plaintifi/respondent averred that the witness already provided evidence based on the current pleadings and that allowing amendments at this stage would cause them grave prejudice. He contended that the 2nd defendant/applicant had ample opportunity to seek amendments before the hearing commenced but failed to do so. 6. He deposed that the application was an afterthought designed to fill gaps in the defendants’ case that were exposed during the hearing. Further, that the 2nd defendant/applicant has not sought to set aside or vacate the proceedings already conducted. He added that without such a request, the amendments cannot be accommodated without causing procedural confusion and injustice. 7. It was further deposed that permitting far-reaching amendments after a trial has started contradicted the principles of fairness, procedural certainty and the orderly administration of justice. 8. This court directed the parties to argue the application through written submissions. By the time of writing this ruling, neither of the parties had filed their submissions. Be that as it may, I have considered the application and the replying afidavit thereof. The sole issue for determination is whether the 2nd defendant/applicant should be granted leave to amend his defence and counterclaim dated 4th February 2025. 9. Section 100 of the Civil Procedure Act, provides as follows:“ The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding”. 10. Order 8, Rules 3 and 5 of the Civil Procedure Rules, provides as follows:“ (1) Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3531/eng@2026-06-11 2

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11. (2) Where an application to the court for leave to make an amendment such as is mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just so to do. (3) ...... (4) ...... (5) An amendment may be allowed under subrule (2) notwithstanding that its efiect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.” Further, Order 8, Rule 5 of the Civil Procedure Rules provides: “ (1) For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just. (2) This rule shall not have efiect in relation to a judgment or order.” 12. The above provisions of the law demonstrate that indeed amendment of pleadings may be allowed at any time of the suit. The court however has discretion to either allow or deny the amendment hence the need to seek leave. In making this decision, the court needs to look at all circumstances of the matter. If the amendment will greatly prejudice the other party so as to lead to an injustice, then the amendment may be disallowed. But if no injustice is going to be caused to the other party, the court may allow the amendment with necessary directions. Having said that, it is preferable that applications to amend come early in the proceedings. Late amendments are more likely to cause injustice as compared to an amendment coming before the hearing of the suit commences. 13. In the case of Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] KECA 367 (KLR), the Court of Appeal stated as follows:“ The overriding consideration in applications for such leave is whether the amendments are necessary for the just determination of the controversy between the parties. Likewise mere delay is not a ground for declining to grant leave. It must be such delay as is likely to prejudice the opposite party beyond monetary compensation in costs. The policy of the law is that amendments to pleadings are to be freely allowed unless by allowing them the opposite side would be prejudiced or sufier injustice which cannot properly be compensated for in costs.” 14. It is not in contention that the matter has advanced being that the plaintifis/ respondents’ case has already commenced hearing. Notably, one of the plaintifis’ witnesses has already testified to the extent of having been cross-examined. On the other hand, I have perused the draft amended defence and counter claim. In the amended statement of defence, the only amendment sought in it is the description of the parties in paragraph 2. More importantly, the amended counterclaim does not seek https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3531/eng@2026-06-11 3

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to fundamentally alter the cause of action save to present the claim as pleaded by the 2nd defendant/ applicant which in my view is not prejudicial to the plaintifis/ respondents. 15. While I note that the plaintifis/respondents witness is yet to complete examination of their witness, I am of the view that amendment of the pleadings at this stage is necessary to enable the court to determine all the issues once and for all. Equally, the plaintifis/respondents will have a chance to amend their defence to the counterclaim accordingly. Additionally, costs would also be an appropriate remedy in the circumstances. 16. From the above, I find merit in the notice of motion dated 2nd February, 2026 and I grant the following prayers:1. Leave is hereby granted to the 2nd defendant/applicant to amend his statement of defence and counterclaim dated 4th February, 2025 as per the draft amended statement of defence and amended counterclaim. 2. For clarity, the annexed draft amended statement of defence and amended counterclaim is deemed as duly filed upon payment of requisite fees payable within 3 days from the date hereof. 3. Upon paying the requisite fees, the 2nd defendant/applicant to serve the same upon the plaintifis/respondents forthwith to enable the plaintifis/respondents file their defence to the amended counterclaim if need be. 4. Costs of this application due to the plaintifis/respondents is assessed at Kshs.45,000/. 5. Further mention on 09th July, 2026 for further directions. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 11TH DAY OF JUNE, 2026. HON. MBOGO C.G. JUDGE 11/06/2026. In the presence of: Mr. Benson Agunga - Court assistant Ms. Judith Aura for the Plaintifis/Respondents Ms. Kulohoma holding brief for Mr. Echesa for the 2nd Defendant & the Interested Party No appearance for the 1st Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3531/eng@2026-06-11 4

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