https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4681

Emfil Ltd v Attorney General & 423 others (Environment and Land Case 113 of 2015) [2026] KEELC 4681 (KLR) (23 July 2026) (Ruling) Neutral citation: [2026] KEELC 4681 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Environment and Land Case 113 of 2015 JO Olola, J July 23, 2026 Between Emfil Limited Plaintiff and The Honourable Attorney General 1st Defendant The Chief Land Registrar 2nd Defendant The Registrar Of Titles Mombasa 3rd Defendant The Registrar Of Titles-kwale 4th Defendant Public Service Commission 5th Defendant The Director LandsAdjudication And Settlement 6th Defendant Settlement Fund Trustees 7th Defendant County Government Of Kwale & 416 others & 416 others & 416 others 8th Defendant Ruling 1.Before the court for determination are two applications both filed by EMFIL Limited (the Plaintiff). 2.By the Notice of Motion dated 22nd October 2024, the Plaintiff prays for an order that this Court be pleased to conduct a site visit on the suit properties. The application which is supported by an Affidavit sworn by the Plaintiff’s director Vinay Chandra Damodar Popat is premised inter alia on the grounds:i.That the dispute surrounds huge parcels of land situate South West of Mombasa Municipality in Kwale County.ii.That contrary to the principle of sanctity of title and various Court orders, the Registrar of Lands, Kwale, has continued to deal with the suit properties and transferred the same under a scheme commonly known as Kwale/Ramisi /Kinondo Squatters Scheme;iii.That the dispute in question is that the 431 Defendants are persons who have benefited from illegally issued titles under the said settlement scheme that was illegally created from the Plaintiff’s land or are persons who purport to have purchased land from persons issued with titles under the scheme;iv.That it is the Plaintiff’s case that its titles issued under the Registered Titles Act and the titles issued under the Registered Land Act in respect of the Ramisi Settlement Scheme relate to the same property;v.That the prayers that the Plaintiff is seeking are in the form of orders for possession of the suit property and a permanent injunction restraining the Defendants from dealing with the suit property;vi.That a site visit to the suit property should be conducted in the presence of all parties and/or their Advocates along with survey experts prior to witnesses testifying in the matter as this will assist the Court in concluding the dispute efficiently;vii.That no prejudice will be suffered by any party if the orders sought are granted; andviii.That it is therefore in the interest of justice that the application be granted. 3.A number of the Defendants are opposed to the application. In a Replying Affidavit sworn on their behalf by the 167th Defendant, Nassoro Abdalla Mwachibulo on 20th February 2026, the Defendants aver that they are not aware that the suit properties belong to the Plaintiff. It is their case that the Land Reference numbers stated by the Plaintiff to belong to itself do not exist and that therefore a site visit is superfluous and unnecessary. 4.The Defendants further aver that a just determination of the case depends on the evidence each party tenders before the Court and parties are precluded from inviting the Court to gather evidence in support of its respective case. The Defendants assert that if the orders sought are granted they will suffer prejudice and injustice. 5.The County Government of Kwale (the 8th Defendant) is equally opposed to the Plaintiff’s Motion dated 22nd October 2024. By their Grounds of Opposition dated 18th February 2026, the 8th Defendant is opposed to the application on grounds listed as follows:1.That the issues in dispute are capable of determination based on documentary evidence, expert reports and witness testimony already on record. A site visit will not materially assist the Court in resolving the matter.2.That the Plaintiff improperly seeks the Court to gather evidence on its behalf after its witnesses have already testified, amounting to an indirect reopening of the Plaintiff's case to the prejudice of the Defendants.3.That a site visit at this particular point after the Plaintiffs witnesses have already testified would unfairly prejudice the Defendant by introducing extraneous observations that cannot be properly tested through cross-examination or expert scrutiny.4.That the Plaintiff has failed to demonstrate compliance with the applicable procedural requirements for such an Application, including necessity, relevance, and proportionality under the Civil Procedure Rules.5.That a site visit would unnecessarily prolong proceedings given the age of the matter, cause logistical complications and increase costs, contrary to the overriding objective of expeditious and cost-effective resolution of disputes.6.That the Plaintiff has access to adequate alternative means of presenting its case, including photographs, maps, survey reports and expert testimony already produced by its witnesses. A site visit at this particular point is thus overtaken by events.7.That the Applicant's application is a waste of judicial time, unmerited and ought to be dismissed with costs to the 8th Defendant. 6.By the second application dated 27th November 2025, the Plaintiff prays for an order that it be granted leave to further amend its Amended Plaint dated 13th March 2024, in terms of the Draft Further Amended Plaint annexed to the Supporting Affidavit herewith. 7.The second application is supported by an Affidavit sworn by the Plaintiff’s Legal Officer Sampath Krishner Iyenger on 27th November 2025 and is premised inter alia on the grounds:i.That it is imperative that prior to the hearing of the suit, the Plaintiff be allowed to amend its Amended Plaint dated 13th March 2024;ii.That the amendment sought is to include a prayer which has become necessary pursuant to a judgment delivered by the ELC in Kwale ELC JR E002 of 2025 – EMFIL Limited –vs- The Attorney General, the Land Registrar Kwale and Others, in which the Court held that all matters in dispute with regard to the subject land should be heard and determined in this instant suit;iii.That the said suit in Kwale was dismissed on the grounds of the same being sub-judice to this instant suit;iv.That the Amended Plaint dated 13th March 2024 did not contain a prayer seeking a cancellation of all titles issued by the 1st to 7th Defendants under the Settlement known as the Kwale/Ramisi Kinondo squatter Settlement Scheme, which affected the Plaintiff’s title to the suit property;v.That now that the Kwale suit has been dismissed and the Court indicated that the proper forum for all disputes touching on the subject land should be through this suit, it has become necessary to add the prayer relating to the cancellation of the titles issued by the 1st to 7th Defendants under the Settlement Scheme;vi.That the proposed amendment will not change the Plaintiff’s original cause of action as previously presented;vii.That the Plaintiff’s primary witness is yet to testify, and the Defendants will have an opportunity to cross examine the witness on the Further Amended Plaint;viii.That this Honorable Court’s overriding objective is to facilitate the just, expeditious, proportionate and affordable resolution of disputes and it has unfettered discretion to permit amendment of pleadings where necessary; andix.That it is therefore in the interest of justice that this application be granted. 8.The 1st, 2nd, 3rd, 4th, 5th and 6th Defendants are opposed to the Plaintiff’s application for amendment. By their Grounds of Opposition dated 18th February 2026, the Defendants object to the application on the grounds:1.That the Application is incompetent, bad in law, misconceived and otherwise an abuse of the court process and should be dismissed in the first instance.2.That the proposed amendments are schemes to fill in the gaps exposed at trial of the Plaintiffs case where witnesses have been called to testify, cross examined and closed their case.3.That in the foregoing, the proposed amendments of the Plaint by the Plaintiffs have far reaching consequences and shall deny the 1st, 2nd, 3rd, 4th, 5th and 6th Defendant’s rights to a fair trial and rules of natural justice contrary to Articles 50 and 159 of the Constitution.4.That the Plaintiff’s application has been filed inordinately late in the day in anattempt to prejudice the 1st, 2nd, 3rd, 4th, 5th and 6th Defendants defence and hearing hereof and therefore they shall be substantively prejudiced.5.That in the event this Honourable Court allows the application, the 1st, 2nd, 3rd, 4th, 5th and 6th Defendants shall be entitled to and/or reserve the rights to file their defence and call any witness.6.That this Honourable Court is without jurisdiction on account of the doctrine of Res Judicata where the issues have been heard and determined in Kwale ELC JR No. E002 of 2025; EMFIL Limited –Vs- Attorney General and the County Government of Kwale & Another. 9.I have carefully perused and considered the two applications as filed by the Plaintiff as well as the respective responses thereto by the Defendants. I have similarly perused and considered the submissions and authorities placed before me by the Learned Advocates representing the parties. 10.By their first application before the Court, the Plaintiff prays for an order that this Court be pleased to conduct a site visit on the suit properties. It is the Plaintiff’s case that the dispute surrounds huge parcels of land and that a site visit thereto would assist the Court in concluding the dispute efficiently. 11.The Defendants are opposed to the application. According to the Defendants the land reference numbers cited by the Plaintiff do not exist and that therefore a site visit is superfluous and unnecessary. The Defendants further assert that the application by the Plaintiff is an attempt to invite the Court to help the Plaintiff gather evidence in support of their case and that if the orders are granted the Defendants stand to suffer prejudice and injustice. 12.The Plaintiff’s application is brought pursuant to Order 18 Rule 11 which provides as follows:“The Court may at any stage of a suit inspect any property or thing concerning which any question may arise.” 13.From the foregoing provisions, it is clear that the Court is empowered under the provisions of the law to physically visit the specific location where a dispute or a crime originated. That visit as the law states may be done at any stage of the proceedings. Contrary to the position taken by the Defendants, such a visit is not meant to aide a party in gathering evidence but is meant to help the Court to verify testimonies, clarify boundaries or physical features and resolve conflicting evidence. 14.In the matter before me the Plaintiff is yet to close its case. It is the Plaintiff’s case that it is the proprietor of L.R. Nos. 13433/6 to 13433/143 situated in Kwale County. According to the Plaintiff, while its titles were issued under the Registration of Titles Act, the 1st to 6th Defendants had proceeded to issue other titles under the Registered Land Act in relation to the same property. 15.In the circumstances herein, while I agree that there is expert evidence on record, it is my considered view that since the Court is not an expert on the matter, the Court’s lay observation of the site would help the Court to better appreciate the expert evidence. 16.Secondly, the Plaintiff as it were is the owner of the case at hand, and to the extent judicially possible, the Court would grant its wish for the visit to the locus-in-quo. Contrary to the submissions made by the defence, I do not ascribe to the view that a site visit is a waste, or imprudent use of the judicial time. 17.Accordingly, I find merit in the Motion dated 22nd October 2024 and hereby allow the same. 18.By the second application before the Court, the Plaintiff prays for leave to be granted to itself to further amend its Amended Plaint dated 13th March 2024 in terms of a draft Further Amended Plaint annexed to the Supporting Affidavit to the application. 19.The Defendants are again opposed to the application. According to the Defendants the proposed amendments are schemes meant to fill in the gaps exposed at the trial of the Plaintiff’s case where witnesses have already testified and have been cross-examined. The Defendants assert that the proposed amendments have far reaching consequences and to allow the same shall be tantamount to denying the Defendants their right to a fair trial. 20.In regard to amendments of pleadings Order 8 Rule 5 provides as follows:“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.” 21.As was succinctly stated in Institute for Social Accountability & Another –vs- Parliament of Kenya & 2 Others and Commission for the Implementation of the Constitution (Interested Party) [2014] KEHC 7356 (KLR):“17.The issue of amendment of pleadings is not novel and has been the subject of numerous court decisions, the common denominator being that as a general principle, courts will normally allow amendment of pleadings at any stage of the proceedings if it can be done without occasioning injustice or prejudice to the other party and which prejudice can be compensated by an award of costs.....18.The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis 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 the form of the action or proceedings. 22.Speaking to the same issue in Central Bank of Kenya Limited –vs- Trust Bank & 4 Others [2000] EACA 367 (KLR), the Court of Appeal held 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 suffer injustice which cannot properly be compensated for in costs.” 23.In the matter before me, the amendment sought by the Plaintiff is to include a prayer for cancellation of the titles issued to the Defendants. Those prayers were initially part of the Plaintiff’s prayers herein but were abandoned when the Plaintiff instituted Kwale ELC JR No. E002 of 2025; EMFIL Limited –vs- the Attorney General & Others wherein the Plaintiff sought orders of Certiorari, Mandamus and Prohibition against the Defendants. That suit was however dismissed on account that it was sub-judice the instant suit. 24.Having considered the proposed amendments as per the Draft Further Amended Plaint attached to this application it was clear to me that the same will not change the Plaintiff’s original cause of action. While indeed the Defendants have been inconvenienced by the Plaintiffs actions, I was not persuaded that allowing the same would cause any prejudice or occasion an injustice to the Defendants. The proposed amendments are necessary to allow the Court to determine the real issues in controversy between the parties. 25.Accordingly, I find merit in the two applications and hereby make orders as follows:a.The Motion dated 22nd October 2024 is hereby allowed with the costs in the cause.b.It is hereby directed that the site visit be arranged by the parties within 60 days, as time is of the essence.c.The Motion dated 27th November 2025 is hereby allowed with costs to the Defendants.d.The Plaintiff has 21 days from the date hereof to file and serve the Further Amended Plaint. 26.It is so ordered. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT MOMBASA THIS 23RD DAY OF JULY, 2026.………………………J.O. OLOLAJUDGEIn the presence of:a) Ms. Firdaus Court Assistant.b) Ms. Dave Advocate for the Plaintiffc) Mr. Asige for 33 Defendants and holding brief for Mr. BirirMr. Kemei for the 1st to 4th and 6th to 8th DefendantsMrs. Omondi holding brief for Gathu for the 8th DefendantMr. Omenya for the 423rd Defendant