https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4277

Langat v Lelei & 3 others; Chemai (Interested Party) (Environment and Land Case 56A of 2013) [2026] KEELC 4277 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KEELC 4277 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Case 56A of 2013 EM Washe, J July 10, 2026 Between David Langat Plaintiff and Dr. Lectary Kibor Keiyo Lelei 1st Defendant St. Lukes Orthopedic & Trauma Hospital Ltd 2nd Defendant Sunrise Orthopedic & Trauma Hospital Ltd 3rd Defendant and Maru Chemai Interested Party and Maru Chemai Interested Party Ruling 1.The 1st Defendant (hereinafter referred to as “the Applicant”) did file a Notice of Motion Application dated 07.05.2026 (hereinafter referred to as “the present Application”) against the Plaintiff (hereinafter referred to as “the Respondent”) seeking the following Orders; -a.That service of this Application be dispensed with in the first instance and that the same be certified urgent and heard ex-parte in the first instance.b.That the Plaintiff’s Further Further Further Amended Plaint dated 24.02.2026 and filed on the same day be struck out and/or expunged from the record for having been filed without leave of the Court.c.That costs of this Application be in the cause. 2.The grounds in support of the prayers sought above are contained in the body of the present Application and the Supporting Affidavit thereof and can be summarised as follows; -i.The Civil Procedure Rules, 2010 and in particular Order 8 Rule 1 provides that a party can only amend its pleadings with leave of the Court once pleadings are closed.ii.The Respondent’s Further Further Further Amended Plaint dated 24.02.2026 was filed without leave of the Court.iii.Consequently, the Further Further Further Amended Plaint dated 24.02.2026 is irregular, incompetent and an abuse of the Court process.iv.The Applicant did further plead that the Further Further Further Amended Plaint did prejudice his defence and or the issues that have already been pleaded before the Court and should therefore be struck out forthwith. 3.The present Application was duly served on the Respondent who did file Grounds of Opposition dated 20.05.2026. 4.The Grounds pleaded by the Respondent in the Grounds of Opposition dated 20.05.2026 were as follows; -i.The present Application was fatally defective, incompetent and untenable in law and therefore the Orders sought therein cannot be granted.ii.The Respondent did plead that the Further Further Further Amended Plaint was duly filed with the Leave of the Court based on a Consent dated 26.01.2026 and recorded in Court on the 28.01.2026.iii.In the Consent dated 26.01.2026 and recorded in Court on the 28.01.2026, all parties were granted leave to amend their pleadings and documents within a specific time frame to bring forth all the issues for determination.iv.In essence, the Applicant herein is estopped from challenging the Respondent’s amended pleadings which were filed on the basis of the consent dated 26.01.2026 and recorded in Court on the 28.01.2026.v.The Respondent therefore sought this Court to dismiss the present Application with costs. 5.The present Application was canvassed by way of written submissions. 6.The Applicant did file his submissions dated 01.06.2026 while the Respondent did file his submissions dated 05.06.2026. 7.The Court has carefully perused the present Application, the Grounds of Opposition and the submissions by both Counsel and identifies the issues for determination as follows; -Issue No. 1- Was The Further Further Further Amended Plaint Dated 24.02.2026 Filed With The Leave Of The Court?Issue No.2- Is The Present Application Merited?Issue No.3- Who Bears The Costs Of The Present Application? 8.The Court having identified the above-mentioned issues for determination, the same will be discussed as provided below. Issue No. 1- Was The Further Further Further Amended Plaint Dated 24.02.2026 Filed With The Leave Of The Court? 9.The first issue which is also the main issue in the present Application is whether or not the Further Further Further Amended Plaint dated 24.02.2026 was filed without leave of the Court. 10.The Applicant did plead and submit that the Respondent herein did file the Further Further Further Amended Plaint dated 24.02.2026 without obtaining leave as provided under Order 8 Rule 1(1) of the Civil Procedure Rules, 2010. 11.The Respondent on the other hand was of the view and submission that the Further Further Further Amended Plaint dated 24.02.2026 was file with leave as per the Consent dated 26.01.2026 and recorded in Court on the 28.01.2026. 12.Indeed, the Court had gone through the proceeding of this file and takes note of the proceedings of 28.01.2026. 13.On this material date, the parties herein did file a Consent dated 26.01.2026 executed by all the parties herein. 14.In the consent dated 24.01.2026, Clause (a) and (b) did state as follow; -1.The Applications dated 16.01.2026 and 08.01.2026 shall be compromised in the following terms; -a.That all parties be at liberty to amend, file and serve their respective documents and/or witness statements.b.That the Plaintiffs do file and serve their respective documents on or before the 28.02.2026.c.That the Defendants and the Interested Party do file and serve their documents on or before the 28.03.2026. 15.The two applications dated 16.01.2026 and 08.01.2026 mentioned on the Consent were filed by the 2nd Defendant seeking for leave to file and serve a further witness statement and/or list of documents and the Respondent herein seeking to have the matter start afresh before this Court respectively. 16.The Court in the adoption of the Consent dated 26.01.2026 was clear that all parties had the liberty and therefore permission and/or leave to amend, file and serve their respective documents within the specified timelines therein. 17.The provisions of Order 8 Rule 3 (1) of the Civil Procedure Rules, 2010 state as follows; -“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 pleading” 18.Further to the above, Order 8 Rule 5 of the Civil Procedure Rules, 2010 states as follows; -“5(1) For the purposes of determining the real question in controversy between the parties, or of correcting any defect or error in the proceedings, the court may either on 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.” 19.Based on the above express provision of the law, it is not mandatory that a party has to make a formal application while seeking an amendment of its documents as has been submitted by the Applicant. 20.The impression being created by the Applicant herein is that because the Consent did indicate documents only, then any pleading filed based on the said consent was without leave of the Court. 21.Unfortunately, this Court respectively disagrees with the Applicant on this interpretation of the word document. 22.This is because Order 8 Rule 5 (1) of the Civil Procedure Rules, 2010 uses the word any document which includes any pleadings and any other document that is being filed in the course of the hearing as a document that can be amended. 23.The Applicant’s submission therefore that the use of the word any document in the Consent dated 26.01.2026 is simply restrictive and does not assist in the pursuit of a fair hearing as enshrined in our Kenyan Constitution, 2010. 24.Specifically, the Respondent was at liberty to prepare, file and serve any amended documents, which includes their pleadings, on or before the 28.02.2026. 25.The Further Further Further Amended Plaint dated 24.02.2026 was indeed filed on the 28.02.2026 at 19.51 Hours. 26.Clearly, the Further Further Further Amended Plaint dated 24.02.2026 was filed within the specified period granted to the Respondent to amend its documents. 27.In essence, this Court is satisfied that the Further Further Further Amended Plaint dated 24.02.2026 filed on the 28.01.2028 was filed with the leave of the Court, pursuant to the Consent dated 26.01.2026 and recorded in Court on the 28.01.2026. 28.For that reason, the Further Further Further Amended Plaint dated 24.02.2026 is properly on record and there is no prejudice occasioned to the Applicant, the Defendants and/or the Interested Party by this pleading. Issue No.2- Is The Present Application Merited? 29.The second issue for determination is whether or not the present Application is merited. 30.The Court having made a finding that the Further Further Further Amended Plaint dated 24.02.2026 is properly on record, then the present Application is not merited and/or granted. Issue No.3- Who Bears The Costs Of The Present Application? 31.Costs are usually awarded to the winning party unless otherwise ordered. 32.In the present Application, the costs are awarded to the Respondent herein payable by the Applicant. Conclusion 33.In conclusion, this Court hereby makes the following Orders in determination of the present Application; -A.The Notice Of Motion Application Dated 07.05.2026 Be And Is Hereby Dismissed.B.The Respondent Is Awarded Costs Of The Present Application Payable By The Applicant.C.This Matter Will Proceed On A Priority Basis As Contained In Order No. 1 (e) Of The Consent Dated 26.01.2026.D.In The Event any Party Is Deemed To Cause A Delay In The Hearing And Determination Of This Suit, The Court Will Impose Appropriate Sanctions Including Depositing Of Security For Costs Of This Suit Pending The Hearing And Determination Of The Same. DATED, SIGNED and DELIVERED in ELDORET this 10TH DAY OF JULY,2026.EMMANUEL.M. WASHEJUDGEIn The Presence Of:Court Assistant: Mr. BrianCounsel for the Applicant: Mr. Ndegwa for the Plaintiff/RespondentCounsel for the Respondent: Mr. Kamau for the Interested PartyMrs. Cheptinga for the 2nd Defendant Ms. Chesoo for the 1st Defendant