https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3252

**REPUBLIC OF KENYA** **ENVIRONMENT AND LAND COURT** **AT KILGORIS** **ELC E025 OF 2025** **GILBERT ATIKA (Suing as the legal representative of the** **Estate of Francis Atika Okerosi)………………………………..PLAINTIFF/RESPONDENT** **VERSUS** **DANIEL LEBOI ………………………………….…………….1ST DEFENDANT/RESPONDENT** **SUBCOUNTY LAND REGISTRAR** **TRANSMARA EAST/WEST………………………………...…2ND DEFENDANT/RESPONDENT** **RULING** 1. This Ruling relates to the application dated 18th February 2026 which seeks to amend the defence dated 11.11.2025 in terms of the Draft Amended Statement of Defence and for the said draft Amended statement of Defence to be deemed as duly filed and served upon payment of the requisite court fees. 2. The grounds in support of the application are *interalia* that the proposed Amendments are necessary to enable the court to effectively determine all the issues in controversy between the parties including the issue of Limitation of Actions. 3. The proposed amended defence introduce no new cause of action hence no prejudice will be occasioned to the plaintiff, and that the application is made timeously and in the interests of justice as the suit is at an early stage and no trial date had been set. 4. The Application is brought under Order 8 Rules 1, 3 and 5 of the Civil Procedure Rules 2010, sections 1A, 1B and 3A, and a supporting affidavit by the Applicant Mr. David Leboi, who reiterates the grounds in support of the application and has annexed the draft Amended statement of Defence. 5. The application is opposed by the grounds of opposition which raises grounds *interalia*, the Intended Amended is an abuse of the court process, and it raises a new cause of action adverse to the position earlier taken the application is an afterthought and allowing the application would occasion injustice and unnecessary delay to the Respondent. 6. Mr. Shira Learned Counsel argued the application for the Applicant, and placed reliance on the decision in the case of Mwandele Vs. Nairobi City Council and 3 Others 2023 (eKLR), and Waweru and 2 Others Vs. Githunguri Constituency Ranching Co. Ltd. 7. It was his further submission that under Rule 3 and 5 of Order 8 court can allow an Amendment so as to bring all the issues in controversy to the fore. He further argued that no prejudice had been and pleaded and submitted in the grounds of opposition. He argued the court to allow the application. 8. On his part Mr. Obare Learned Counsel for the Respondent, submitted that the application was an afterthought as it was not prosecuted immediately. The Respondent is not aware when title was issued, hence the issue of Limitation is a technical issue meant to deny the Respondent his day in court. He urged court to disallow the application. 9. In a brief rejoinder Mr. Shira submitted that the application was filed one day after the plaintiff filed a further list of documents. 10. That the merits of the application are different from the substance of the main suit and court cannot make determination of the substantive issues at the interlocutory stage. 11. He urged the court to allow the application. **Issues for Determination** 1. The court frames the sole issue for determination as to whether or not the application is merited. **Analysis and Determination** 1. I have considered the application alongside the strenuous opposition mounted against it by Mr. Obare Learned Counsel. For starters, the application seeks to Amend a defence so as to plead a new line of defence to wit, Limitation of time. 2. The Application was filed one day after the filing of further list of documents by the plaintiff. 3. I find that the application was not filed late, and that in order to bring the real question and all issues in controversy to the fore, amendment should be allowed; that’s the letter and spirit of section 100 of the Civil Procedure Act as well as Order 8 Rule 5 of the Civil Procedure Rules. 4. As observed in Institute for Social Accountability and Another Vs. Parliament of Kenya and 3 Others (2014) eKLR, ***“The object of amendment of pleadings is to enable the parties alter their pleadings so as to ensure that ligation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief already claimed, but rather on the basis of the time of the true state of the facts which the parties really and finally intend to rely on. The power of Amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings.”*** 5. I agree with the said holding by the Learned Judges and add that there is no prejudice that will be occasioned to the Respondent, since he will file a Reply to Amended Defence in any event, and the matter shall be heard on its merits. 6. I therefore allow the application as prayed. 7. The Applicant to file and serve the Amended statement of Defence within 7 days from today 8. The Respondent is granted 7 days after service to file their Amended Defence to file a Reply to defence. 9. The parties shall comply with order 11 within 30 days, with each party having 15 days. 10. Pre-trial conference on 30.06.2026. 11. Orders accordingly. Dated at Kilgoris this 28th day of May 2026 Hon. M.N. Mwanyale Judge **In the presence of** CA – Sylvia/Clara Mr. Obare for the Plaintiff/Respondent Mr. Shira for the Defendant/Applicant Mr. Ranah for 2nd Defendant/Respondent