https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3668

East Africa Institute of Certified Studies Limited v Singh (Environment and Land Case Civil Suit 6 of 2023) [2026] KEELC 3668 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 3668 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Case Civil Suit 6 of 2023 AY Koross, J June 16, 2026 Between East Africa Institute of Certified Studies Limited Plaintiff and Hardev Singh Defendant Ruling 1.This ruling concerns the notice of motion dated 31 July 2025, filed by the plaintiff, which is presented as being made in accordance with Order 8 Rules 3 and 5 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, and all other enabling provisions of the law. It seeks the following orders from this court: -a.That leave be granted to the plaintiff to further amend the plaint.b.That the draft further amended plaint as attached hereto, be deemed as duly filed upon payment of the requisite court fees.c.That the costs of this application be in the cause. 2.The motion is supported by the grounds therein as well as the affidavit sworn on the instant date by Daniel Wakaba Macharia, in which he briefly states that, upon reviewing the plaint, the plaintiff discovered that previous advocates omitted important details, including the quantification of loss of income caused by the defendant’s actions. The plaintiff now seeks to further amend the plaint, noting that the proposed changes do not add any new parties. Allowing this application serves the interests of justice, equity, protection of rights, and upholds constitutional principles. 3.By a replying affidavit sworn on 18 November 2025, the defendant opposed the motion and concisely avers that, having already been allowed to amend, the plaintiff should not be permitted to keep changing its case whenever there is a new advocate and litigation must come to an end. The proposed further amendment introduces issues not raised in the original or amended plaint, creating a new cause of action and changing the nature of the suit to his disadvantage. 4.Further, under Order 8 Rule 3(5) of the Civil Procedure Rules, amendments should not be allowed if they cause injustice or prejudice to the other party, or if they are made in bad faith or without good reason. In this case, the plaintiff has not provided a satisfactory explanation for why these matters were omitted from both the original and amended plaint, even though there was sufficient time to include them. To him, the motion is only intended to address weaknesses in the plaintiff's earlier pleadings, and would require filing another defence, reopening pleadings, and causing further delay in resolving this suit, which goes against the main objectives set out in Sections 1A and 1B of the Civil Procedure Act. 5.When this matter came before the court on 9 April 2026, it was noted that the plaintiff, through its law firm on record, M/s. Olando, Okello & Lusenaka Advocates had filed written submissions dated 10 February 2026. As for the defendant, his counsel, Ms. Mutuku, informed the court that she fully relied on the defendant’s replying affidavit. Accordingly, the matter was reserved for ruling today. 6.Thus, after thoroughly examining the motion, including its grounds, the parties’ affidavits, the plaintiff’s submissions, together with the provisions of law and judicial precedents, the sole issue for determination is whether the motion is merited. We shall proceed. 7.Regarding the legal framework on amendment of pleadings and as submitted by the plaintiff, Order 8, Rules 3 and 5 permit this court to allow parties to amend their pleadings, as the object of such amendments is to enable the parties to present their case so that the real question in controversy can be determined. These provisions state: -Order 8, Rule 3“(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.(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)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.(4)An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which the party will sue is one in which at the date of filing of the plaint or counterclaim, he could have sued.(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.”Order 8, Rule 5“(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 effect in relation to a judgment or order.” 8.It is evident from a reading of the above provisions of law that while the court is usually lenient regarding amendments at any time before it renders a judgment, it may refuse certain types of amendments. In considering such applications, the court exercises its discretion to do justice in the case, and it must be exercised judiciously, not whimsically. In considering Bullen and Leake & Jacob's Precedents of Pleading, 12th Edition, A.B. SHAH (JA), the Court of Appeal decision in Joseph Ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago [1995] KECA 31 (KLR), established the following guiding criteria on amendments of pleadings:-“that powers of the court to allow amendment is to determine the true, substantive merits of the case; amendments should be timeously applied for; power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages) that as a general rule however late the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side; that exact nature of proposed amendment sought ought to be formulated and be submitted to the other side and the court; that adjournment should be given to the other side if necessary if an amendment is to be allowed; that if the court is not satisfied as to the truth and substantiality of the proposed amendment it ought to be disallowed; that the proposed amendment must not be immaterial or useless or merely technical; that where the plaintiff's claim as originally framed is unsupportab1e an amendment which would leave the claim equally unsupportable will not be allowed ; that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action; that the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on Limitation Acts but subject however to powers of court to still allow such an amendment notwithstanding the expiry of current period of Limitation: that the court has powers even (in special circumstances) to allow an amendment adding or substituting a new cause of action if the same 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 action by the party applying for leave to seek the amendment..” 9.The question of amending pleadings is not new and has been addressed in many court rulings, including Kyungu (Suing on behalf of Danie Kyungu Muasya) v Kivuva & another [2022] KEELC 14971 (KLR), Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited (2013) KECA 354 (KLR), and Joseph Ochieng & 2 others Trading as Acquiline Agencies v First National Bank of Chicago (1995) KECA 31 (KLR). From these court decisions, it emerges that the decision to grant or deny leave to a party to amend pleadings is at the court's discretion, based on law, evidence, and reason. 10.Typically, the court permits amendments deemed necessary to ascertain the real issues in dispute or to prevent the proliferation of lawsuits, provided there has been no undue delay, no new or conflicting cause of action is introduced, and no vested interest or accrued legal right is compromised. Moreover, the amendment may be granted without causing injustice to the opposing party. The general rule is that courts typically permit amendments at any stage of proceedings, provided they do not cause injustice or prejudice to the opposing party. If there is prejudice, it can often be offset by an award of costs. 11.The purpose of amending pleadings is to allow the parties to modify their pleadings so that litigation proceeds based on the actual facts and the intended relief, rather than on inaccurate assertions or claims. The authority to amend enhances the court's ability to focus on the case's substantive merits rather than being constrained by procedural formalities. 12.The defendant’s replying affidavit has raised several substantive objections. The first objection pertains to the plaintiff’s previous amendment of the plaint, suggesting that the proposed amendments in the re- amended plaint should have been included in the prior amendment. However, pursuant to Order 8, Rule 3 (1), and established jurisprudence, a party may amend pleadings at any time before judgment, and a prior amendment does not bar subsequent amendments provided that such amendments satisfy the applicable legal criteria. In this case, the proceedings are very much alive, entitling any party to apply for an amendment of pleadings before judgment. Hence, the court finds that this ground of objection is unsustainable. 13.The second and third objections alleged that the amendment introduced a new cause of action that significantly altered the nature of the suit, thereby prejudicing the defendant. The court has carefully examined the draft of the re-amended plaint and, while acknowledging the defendant's contention that certain facts, particulars, including the loss of income, and the reliefs sought are new, it is evident that all such elements relate to a lease agreement concerning MAPUTI KIIMA KIMWE/3420 (the suit property) and the purported lease agreement between the parties dated 19 January 2021 which have always constituted the core dispute between the parties from the original pleadings. 14.To this court’s mind, and guided by the binding decision in Joseph Ochieng (Supra), there is nothing wrong with such an amendment introducing a new cause of action, as the facts and some of the causes of action are substantially the same, some of the reliefs sought have been sustained in the draft re-amended plaint, and all relate to the suit property and alleged lease. Amending pleadings will allow the plaintiff to modify its claim so that the case is based on the true facts it genuinely intends to rely on, rather than on previous assertions, and so that the court can conclusively determine the issues before it, as declining the proposed amendment will only lead to the filing of another suit. This court finds that the defence’s objections cannot stand. In any case, the defence will have the opportunity to seek costs, amend its defence and bring a counterclaim. 15.Ultimately, this court finds that reliefs sought in the notice of motion dated 31 July 2025 are merited. For reasons, this is an interlocutory motion; costs shall be in the cause. Consequently, the court hereby issues the following final orders:a.The plaintiff shall, within 21 days of the date hereof, file and serve the re-amended plaint.b.Thereafter, the defendant shall be at liberty to file his amendments within 21 days of service.c.All parties are hereby granted leave to file supplementary lists of documents within 45 days hereof and to file and serve an indexed and paginated supplementary bundle of documents.d.A mention date shall be issued to confirm compliance.e.Costs shall be in the cause.Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 16TH DAY OF JUNE, 2026.HON. A. Y. KOROSSJUDGE16.06.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Mr. Okello for plaintiff/applicant.Mr. Kivui holding brief for Mr. Mutava for the defendant/respondent.