https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3211

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MALINDI** **ELC CASE NO. E092 OF 2024** **AFRICA MUSLIMS AGENCY** **TRUST REGISTERED TRUSTEE…………………………………PLAINTIFF** **VERSUS** **KHAMISI R. NZILI & 4 OTHERS………………....................DEFENDANTS** **RULING** **APPLICATION** 1. The Notice of Motion dated **23rd January, 2026** seeks the following orders: 1. *THAT the Plaintiff/Applicant be granted leave to amend the Plaint filed herein dated 6th September, 2024 as per the annexed draft amended plaint;* 2. *THAT the draft Amended Plaint annexed hereto be treated as the Plaintiff’s Amended Plaint and that the same be deemed as having been duly filed and served upon payment of requisite court filing fees;* 3. *THAT the Defendants be at liberty to amend its Defence within 14 days thereafter if they so wish;* 4. *THAT the costs of this application be in the cause.* 2. The application is supported by the annexed affidavit of **Ismail Hassan Hussein** and is premised on the following grounds: 1. *That there is an error in description of the Plaintiff, the suit property and cause of action in the Plaint which errors were neither deliberate nor intentional but out of drafting oversight in the urgency of the moment to file the suit under certificate of urgency to injunct the Respondents infringements;* 2. *The proposed amendments are necessitated by information relevant for the fair and just determination of the real questions in controversy in this suit which came to Plaintiff/Applicant Advocate’s knowledge subsequent to the filing of the Plaint herein, which information includes inter alia that the suit property had been granted to the Plaintiff/Applicant as an endowment in exchange for a token amount indicated as the purchase price;* 3. *The proposed amendments arise out of the same facts or substantially the same facts in respect of which reliefs are claimed by the plaintiff/applicant in this suit and are merely intended to bring before this Honourable Court the real issues in dispute and controversy between the parties herein so that the same are determined on their true and substantive merits;* 4. *The proposed amendments will not occasion any prejudice to the Defendant;* 5. *It is trite law that power to amend can be exercised at any stage (including at appeal);* 6. *It is in the interest of justice that the orders sought are granted.* **RESPONSE** ***Grounds of Opposition*** 1. The 1st 2nd 4th and 5th respondents filed Grounds of Opposition stating as follows: 1. *That the application is misconceived, mischievous and abuse of the court process;* 2. *That this application conceals important amendments which were sought by the previous application dated 20th February 2025 where the Applicant herein sought to amend the body of a verifying affidavit and how the said affidavit has been attached to the plaint without indicating the amendments;* 3. *That the applicants benefited from the lies contained in the verifying affidavit as this Honourable Court dismissed the Defendants’ Preliminary Objection due to the content they now want to amend which means they are confirming that the Preliminary Objection was merited;* 4. *At page 4 of the Ruling delivered on 30th January the court stated as follows:* *“Consequently, it matters not that the deponent of the supporting affidavit calls himself a “director”; in any event he also calls himself a trustee in the verifying affidavit and I think that is sufficient. The objection regarding the plaintiff’s capacity to institute and sustain the suit equally fails.”* * 1. *The amendments labelled as typo and/or mistakes cannot be tolerated by this court. A party must know his case well before he files it. A party cannot amend the subject matter of a suit as this will change the suit to a totally different suit;* 2. *A party cannot be removed from proceedings by amending the Plaint.* 3. *A deceased party cannot be substituted by a person not having letters of administration in his estate;* 4. *The applicant had all the information it intends to use to amend the pleadings at its disposal hence no reason why it did not plead the correct facts and the issue that this matter was filed urgently is an afterthought and a negligent act not to be tolerated by this Honourable Court;* 5. *A party cannot be allowed to amend falsehoods in its Plaint so as to bring the facts in conformity with the documentation filed;* 6. *That this application has been filed late in the day when parties had engaged in mediation which is an alternative means of hearing a matter hence the amendments as geared towards sealing the gaps that arose from the said mediation which collapsed;* 7. *That this application has been filed in bad faith and meant to prejudice the Defendants herein as the Applicant is already aware of the case by the Defendants;* 8. *The amendments sought to introduce prayer (a), (b), and (c ) cannot be allowed as this Honourable Court does not have jurisdiction to deal with the said issues and the applicants know the right forum and in fact they are pursuing the said issues;* 9. *The application herein should be dismissed with costs to the Defendants to be assessed by this Honourable Court as was assessed in Shah & Another v Gonai; Jaff (Third Party ((Environment and Land Case 1468 of 2013) (2025) KEELC 7989 (KLR) (19 November, 2025) (Ruling).* **SUBMISSIONS OF THE PARTIES** 1. The application was disposed of by way of submissions of the parties. The plaintiff file submissions dated 10th March 2026. The first, second, fourth and fifth defendants filed submissions dated 9th March 2026. This court has considered the contents of the said submissions in the preparation of this ruling. **ANALYSIS AND DETERMINATION.** 1. The only issue that arises for determination in the present application is whether the plaintiff should be allowed to amend its plaint as proposed in the draft attached to their application. 2. It is proper to examine the impact of the proposed amendment in order to arrive at a just determination of the present application. 3. In the original plaint, the plaintiff sued **Khamisi R, Nzili** being the headmaster Ama Primary School Kilifi, the Board of Management Ama Primary School Kilifi, Hassan A. Abdullatif the Sub-County Director of Education Kilifi, the Cabinet Secretary Ministry of Education and the Attorney General. 4. The plaintiff stated that the third defendant The Sub-County Director of Education was sued in his personal capacity but in the Draft Amended Plaint it is proposed that his personal name be removed while the official description remains, meaning that he has ceased being sued in his personal capacity. 5. In the proposed Amended Plaint also the statement to the effect that the plaintiff purchased the suit land for valuable consideration has been proposed to be deleted and replaced with the following expression: *“Having been granted the same as an endowment for a token amount for purposes of establishing a mosque, school and health facility in line with the plaintiff’s core functions."* 1. In the original plaint the suit land was described only as: *"Subdivision Number 2 Group X situate at Mjibu in Kilifi District”,* but in the Draft Amended Plaint the description of the land has been given as follows: *"Subdivision Number 23 (Original Number 2/ 3) Group X Kilifi being a portion of Original Plot no 2 delineated on Survey Plan Number 181881 No 2 Group X situated at Mjibu in Kilifi District"* 1. Fresh Additional facts have been added as follows in the draft: 1. ***Paragraph 11a-*** *the plaintiff is entitled to exclusive and absolute possession occupation and use of the suit property without interference from anyone;* 2. ***Paragraph 11b -*** *on or about 20th August 2024, the defendants trespassed on the suit land and appointed a contractor to construct grade 9 classrooms on the instructions of the defendant the contractor has been made in occupation of the suit properties and thus depriving the petitioner of its lawful rights;* 3. ***Paragraph 11c-*** *the actions and omissions of the defendant constitute conversion trespass and expropriation of the suit properties which violates the plaintiffs statutory and Constitutional rights to property as protected by article 40 of the Constitution of Kenya;* 4. ***Paragraph 15-*** *one classroom was constructed a few months after the filing of the present suit and is now in use but that does not deprive the plaintiff of its proprietorship over the suit property;* 5. ***Paragraph 16-*** *the allegation has been added to subparagraphs (a) that the registration of Ama primary school as a public institution was done without the consent of the plaintiff;* 6. ***Paragraph 16-*** *a fresh paragraph (j) has been added alleging that the defendants have disputed the propriety of the claim that the suit land is subjects to a waqf;* 7. ***Paragraph 16a-*** *this paragraph has been added to state that the actions of the defendants constitute to trespass and expropriation of the defendant property which is illegal and unconstitutional;* 8. ***Paragraph 22 –*** *this paragraph has been added to state that no demand notice was served on the defendants due to the urgency of the matter.* 2. The prayers have been proposed to be amended too. The draft includes a fresh prayer for 1. *A declaration that the suit property is the petitioner’s private property and that its take over by the defendants violates the plaintiff Constitutional rights guaranteed in articles 10, 35(2), 40, 47 and 64 of the Constitution; an order question the defendants take over the school as well as its subsequent the signation as a public school;* 2. *A Mandatory Order directing the third and fourth defendants the Ministry of Education and all the relevant Kenya government agencies to through a notice in the Kenya gazette and revert the public-school status of Ama Primary School to private school status;* 3. *What was proposed as a “temporary injunction” or “temporary prohibition” in the original plaint has now been proposed to be a permanent injunction /permanent prohibition restraining the defendants from further developing the suit land;* 4. *An additional prayer for a declaration that the plaintiff is the “lawful and absolute and indefeasible proprietor” of the suit property has also been included in the draft.* 3. It is proposed also in a fresh prayer, that in the alternative, the court do order the parties to furnish a valuation of the classrooms built on the plaintiff's property to facilitate a refund to the defendants by the plaintiff for such value as will be determined by Court. 4. The General Damages sought in the original plaint have now been specified to be *“for trespass”* in the Draft Amended Plaint. 5. This court has noted that there is an instrument of conveyance dated 27th August 1998 attached to the supporting affidavit, for the purpose of conveying to the plaintiff some **4.083** hectares of land, and that a copy of a **Deed Plan Number 181881** is attached thereto. The instrument of conveyance appears to form the basis for the proposed amendment by the plaintiff. Indeed, in the supporting affidavit to the application which has been sworn by one **Dr Ismail Hassan Hussain,** the Country Director of the plaintiff the claim is that there are misdescriptions in the original plaint which are require to be corrected, including the description of the plaintiff, and the description of the suit land, and the contents of prayers in the plaint. The deponent avers that the mistakes were drafting oversights and were inadvertent in view of the fact that the suit was filed as an urgent matter in order to stop the illegal activities of the plaintiff on the suit land. 6. It is correct that under **Section 100** Civil Procedure Act, the court may at any time and all such terms as to costs or otherwise as it may deem fit amend any defect or error in any proceeding in a suit. All amendments are made for the purpose of determining the real questions or issues in the suit. 7. **Order 8 Rule 3** provides as follows: *“(3) An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.”* 1. **Order 8 Rule 5** provides as follows: *“(5) An amendment may be allowed under subrule (2) notwithstanding that its effect 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.”* 1. It is therefore the case that **Order 8 Rule 3** of the Civil Procedure Rules 2010 allows amendment of pleadings with leave of court. Such amendments may include amendments to the name or names of parties to the suit. 2. Under **Order 8 Rule 5,** it is also the case that even an additional cause of action can be allowed in an amended plaint as long as it arises from the same set of facts, or substantially the same set of facts as the cause of action in respect of which relief has already been claimed in the suit. The foregoing provisions grant the court and unfettered discretion in allowing amendments to pleadings. However, Court may refuse to allow amendments where an inconsistent cause of action is introduced or where the vested interests or accrued legal rights will be adversely affected. 3. In the present case, the plaintiff had already pleaded that it purchased the land. It wishes to now change the plea to state that its claim is based on trust through a waqf. To this court, a claim based on “*purchase of land*” is entirely different from a claim based on “*trust*”. As submitted by Mr. Ojwang, counsel for the first, second, fourth and fifth defendants, a litigant is expected to know and express his case from the beginning. The deed of conveyance clearly states that the land was obtained through ***purchase***. I find there to be no justification whatsoever for the change from the claim of “*purchase*” to the claim of “*trust*”. It entirely changes the terrain that the defendants have been navigating while defending this case all along. It also brings out an entire new claim against them which is inconsistent with the facts initially pleaded by the plaintiff and which should not be allowed by this court. 4. The second point of objection raised by Mr. Ojwang is that the amendment of the plaint cannot be used to withdraw a suit against the third defendant. In this court’s consideration, that is so. That position is underscored by the fact that amendment of pleadings and the provisions relating to join the parties are dealt with by provisions enacted under different Orders in the Civil Procedure Rules. The third defendant was joined in his individual capacity. That was the description given in **paragraph 3** of the original plaint. In this court’s view, it then matters not that he was given some description as the “*Sub-County Director of Education in Kilifi*”. Everybody has some rank or character or other description, maybe going by what he does daily for a living, by which he can be more precisely identified; this court believes that the description of the 3rd defendant was only meant to *precisely identify* the person of the 3rd defendant who was intended to be sued in his personal capacity. It is the description "*in his personal capacity*" that matters in that plaint, for it gives the court the idea of what the plaintiff intended, that he be sued in his personal capacity. This means that *the office of* the Sub County Director of Education Kilifi had not been sued in its official capacity in this suit. Without the plaintiff’s invocation of the provisions of the Civil Procedure Rules regarding Joinder or Substitution of Parties, the third defendant cannot be arbitrarily removed from these proceedings in order to join the office. If the applicant desired to withdraw any claim against the third defendant, it has to do that under the appropriate provisions of the Civil Procedure Rules. 5. The third main point that raised by Mr. Ojwang is a Preliminary Objection aimed at defeating the entire suit herein. His position is that the plaintiff wants this court to assume jurisdiction in matters which are not the subject of this court such as the status of schools with the plaintiff as informed the court that it is pursuing in another forum. 6. Mr. Ojwang is of the view that the question or dispute regarding the status of schools, whether public or private, falls under the **Education Appeals Tribunal** by dint of **Section 93(2)** of the **Basic Education Act** and the plaintiff has confirmed in previous court proceedings that it has indeed filed an appeal, and that the dispute is ongoing as to whether the school is a private school or a public school. 7. In *The Matter of the interim Independent Electoral Commission (2011) eKLR* the court held as follows: *“......that jurisdiction flows from the law, and the recipient-Court is to apply the same with any limitations embodied therein. Such a Court may not arrogate to itself jurisdiction through the craft of interpretation, or by way of endeavours to discern or interpret the intentions of Parliament, where the wording of the legislation is clear and there is no ambiguity. In the case of the Supreme Court, the Court of Appeal and High Court, their respective* *jurisdictions are donated by the Constitution.’’* 1. To this court, the classification of a school as a “*public school*” is not solely predicated on whether the land is publicly owned or not and the *vice versa*, yet in this dispute it is the case that there is a school that has been registered as a public school on the suit land. 2. There also does exist provisions in **Section 49** of the **Basic Education Act** as follows: *“49. Establishment of private schools* *Subject to the Constitution and the provisions of this Act, any person may* *establish and maintain a private school.”* 1. **Section 50** of the **Basic Education Act** provides as follows: *“50. Registration of private schools* *(1) A person shall not establish or maintain a private school unless it is* *registered under this Act.* *(2) No private school shall be registered if—* *(a) the proprietor is disqualified from being a proprietor by reason of Article 10 or Chapter Six of the Constitution;* *(b) a teacher employed in the school is not registered by the Teachers Service Commission;* *(c) the school premises, or any part of those premises, are unsuitable for a school; or* *(d) the proprietor or manager has been convicted of any crime against children under the Sexual Offences Act (Cap. 62A) and Counter Trafficking in Persons Act (Cap. 61).* *(3) Subject to the provisions of this Act, the registration of any private school shall be provisional for a term of one year renewable for one further term of one year until the institution is quality assured and notice given in writing to the proprietor that the registration is final.* *(4) If any person—* *(a) conducts a private school which is not a registered school or a* *provisionally registered school; or* *(b) being the proprietor of a private school does any act calculated to* *lead to the belief that the school is a registered school while it is a* *provisionally registered school,* *he or she shall be liable on conviction to a fine not exceeding five million shillings or to imprisonment for a term not exceeding three years or to both such fine and such imprisonment.”* 1. To begin with, this court observes that the plaintiff has conceded that there are teachers employed by the public in the said school and the question arises why that should be the case while the plaintiff insists that the school is a private school. This court has also noted that there are glaring gaps left out while pleading both in the original plaint and in the Draft Amended Plaint regarding how long that situation has persisted. The crucial point made however is that the proper classification of the school has not yet been established so as to enable this Court render its judgment on the dispute regarding the *use and occupation of, and title to, the school land*, to which it is restricted by law and by the Constitution. Consequently, this being a specialized Court under **Article 165 2(b)** with jurisdiction restricted to disputes regarding the *environment, use and occupation of, and title to, land*, it lacks jurisdiction over matters as to whether the school should be classified as public or private. This court ought not usurp the jurisdiction of the proper forum seized with mandate to determine such an issue. 2. This court thus finds that the plaintiff’s suit should not be entertained by this court. It is for the plaintiff to establish in the relevant forum that the school is fully private and then approach this court for relief relating to the use and occupation of the suit land. 3. Consequently, this court finds that first, the proposed amendments in the Draft Amended Plaint are inconsistent with the original plaint. Secondly, it also finds that the issue of the classification of the school as either public or private ought to be before another forum and this court lacks jurisdiction to issue any orders such as those proposed in either the Original Plaint or in the Draft Amended Plaint. 4. The upshot of the foregoing is that the application dated **23rd January, 2026** lacks merit and it is hereby dismissed with costs. 5. In the case of *Owners of the Motor Vehicle M.V. Lillian “S” versus Caltex Oil (Kenya) Limited (1989) KLR 1,* the court stated as follows: *“Jurisdiction must be acquired before judgment. It is for that reason that a question of jurisdiction once raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court. It is immaterial whether the evidence is scanty or limited. Facts constitute the evidence before the court…The moment a court determines that it has no jurisdiction it has to down its tools and proceed no further.”* 1. Since this court has also established at this point that it does not have jurisdiction to determine the issues arising from the pleadings in this case, the corollary is that the entire suit is improperly before it and it is hereby struck out with costs for want of jurisdiction. **Dated, signed** and **delivered** at **Malindi via electronic mail** on this **19th** day of **May 2026.**  **MWANGI NJOROGE** **JUDGE, ELC, MALINDI.**