https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3649

Ethics & Anti-Corruption Commission v Muia & another (Land Case E090 of 2024) [2026] KEELC 3649 (KLR) (16 June 2026) (Ruling) Neutral citation: [2026] KEELC 3649 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Land Case E090 of 2024 AY Koross, J June 16, 2026 Between Ethics & Anti-Corruption Commission Plaintiff and Kimanthi Ben Muia 1st Defendant Wilson Gacanja 2nd Defendant Ruling 1.This ruling concerns the notice of motion dated 22 November 2025, filed by the 1st defendant, which is presented as being made in accordance with Order 8 Rule 3 of the Civil Procedure Rules, and he seeks the following orders from this court: -a.That leave be granted to the 1st defendant to amend his defence.b.That any party affected by the amendment be at liberty to file pleadings as may be necessary.c.That costs be in the cause. 2.The motion is supported by the grounds set out therein as well as the affidavit sworn on the instant date by the 1st defendant, in which he briefly states that he is an innocent purchaser for value and that the 1st defendant has a right to compensation if the court rules in favour of the plaintiff. It is fair and just for all issues related to the suit to be resolved in this matter, and the court should allow the amendment and permit the counterclaim, since the government issued the title documents for the property and is responsible for any loss or damages the 1st defendant may suffer due to the alleged irregularity and illegality of the title. Further, the plaintiff will not be prejudiced by the amendment. 3.The plaintiff contests the motion via grounds of opposition dated 6 February 2026 and raises the following summarised grounds: -a.The application is incompetent as a counterclaim is a cross-action and can only be filed by the 1st defendant as against the plaintiff and not against new parties.b.The application is totally misplaced and grossly misconceived as the proposed amendments introduce new parties, a new cause of action and therefore change the character of the plaintiff’s case.c.The applicant, by filing a counterclaim in the plaintiff’s suit and introducing new parties, has totally caused a disjointed cause of action; allowing the same to stand as requested will cause the plaintiff great prejudice.d.The applicant is free to file an independent suit against the new parties seeking compensation if he so wishes. The application is incompetent, bad in law, embarrassing, and has the sole intent of delaying and complicating the plaintiff’s Suit.e.The application comes very late in the day, more than one year after the plaintiff's suit was filed. The plaintiff is already prejudiced by the delay in the suit, and it is in the public interest that the plaintiff's matters be heard and determined expeditiously.f.The application and the draft defence and counter-claim are fatally defective, misconceived and ought to be struck out or dismissed with costs to the plaintiff. 4.As directed by the court, the motion is canvassed by written submissions. Counsel Mr. Charagu filed for the plaintiff, and the law firm of M/s. E. K. Mutua & Co. Advocates filed for the 1st defendant, and they were all dated 23 April 2026. In their submissions, they both framed two identical issues for determination:i)whether the 1st defendant may amend his defence to join a person who was not a party to the original action as a defendant in the counterclaim, andii)whether the 1st defendant may introduce a new cause of action in his counterclaim.Thus, after thoroughly examining the motion, including its grounds, the parties’ affidavits, the rival submissions, together with the provisions of law and judicial precedents, the singular issue for determination is whether the 1st defendant should be granted leave to amend his defence and file his counterclaim. We shall proceed. 5.The parties did not address the court on the 1st limb regarding the amendment of pleadings. Nonetheless, under the legal framework for the amendment of pleadings, Order 8, Rules 3 and 5 of the Civil Procedure Rules allow 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.” 6.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..” 7.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. 8.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. 9.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. 10.The plaintiff merely asserts that the application had been filed with inordinate delay and contends that the motion was incompetent; however, these claims were made without supporting evidence. Nevertheless, the matter remains at an early pre-trial stage, and this court finds no delay in filing the motion. Furthermore, contrary to the plaintiff’s assertion, the motion is grounded in law, being in accordance with Order 8, Rule 3(1) of the Civil Procedure Rules and established jurisprudence, which permits a party to amend pleadings at any time prior to judgment. In the present case, the proceedings are still active, and there is no reason to deny the 1st defendant leave to amend. Consequently, this court finds that leave should be granted to the 1st defendant to amend the plaint. 11.We now turn to the 2nd limb, which was the crux of the issue in the contest, namely the counterclaim. The legal framework that allows a defendant to file a counterclaim and introduce new parties is found in Order 7, Rules 3 and 8 of the Civil Procedure Rules, which provide:Order 7, Rule 3“A defendant in a suit may set-off, or set-up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and whether it is for a liquidated or unliquidated amount, and such set-off or counterclaim shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit, both on the original and on the cross-claim; but the Court may on the application of the plaintiff before trial, if in the opinion of the court such set-off or counterclaim cannot be conveniently disposed of in the pending suit, or ought not to be allowed, refuse permission to defendant to avail himself thereof.”Order 7, rule 8“Where a defendant by his defence sets up any counterclaim which raises questions between himself and the plaintiff, together with any other person or persons, he shall add to the title of his defence a further title similar to the title in a plaint, setting forth the names of all persons who, if such counterclaim were to be enforced by cross-action, would be defendants to such cross-action, and shall deliver to the court his defence for service on such of them as are parties to the action together with his defence for service on the plaintiff within the period within which he is required to file his defence.” 12.These provisions of law have been the subject of interpretation by our courts. The plaintiff, relying on the persuasive decision of Maina v Maina & another [2022] KEELC 13328 (KLR), contends that the law does not permit a defendant to introduce new parties or a new cause of action into the counterclaim. By contrast, the 1st defendant argues that this provision allows defendants to introduce new parties and relies on the persuasive decision of Kariuki & another v Njambi [2023] KEHC 1831 (KLR). However, the Court of Appeal, whose decisions are binding on this court, has pronounced itself on Order 7, Rule 3 and affirms the 1st defendant’s position. In County Government of Kilifi v Mombasa Cement Limited [2017] KECA 633 (KLR), the Court of Appeal, in interpreting Order 7, Rule 3, stated:“In our view, a plain reading of the above provision allows or gives a defendant in a suit permission or a carte blanche, to raise a counterclaim based on any right or claim against a plaintiff. That provision says nothing to the effect that such counterclaim must be related to the original subject matter of the suit and neither does it attract such an implication… In view of the foregoing, it is safe to conclude that a defendant is permitted to raise a counterclaim against a plaintiff on any right and claim he may have against the plaintiff even where the subject matter or cause of action maybe different from the original suit. The rationale is to avoid multiplicity of proceedings and claims based on same or different cause of action between parties to the suit to enable a court to pronounce a final judgment in the suit both on the original claim and on the counter claim. However, Order 7 rule 3 of the Civil Procedure Rules gives court a wide discretion such that, on the application of the plaintiff, the court may reject a counterclaim where it would not be convenient or where in the opinion of the court, the counterclaim ought not to be allowed. No doubt, that is a wide discretion and the reasons as to why a court would disallow a counterclaim would be many and varied to be decided on a case-by-case basis.”See also Sol Electronics Kenya & 2 others v Raikundalia & another [2025] KECA 970 (KLR) that affirmed this decision. 13.Now, in concurrence with the 1st defendant, this court finds that Order 7, Rule 8, expressly permits defendants to bring in new parties in the counterclaim. Furthermore, it finds that the plaintiff’s objection on this matter is unfounded. 14.Respecting a new cause of action in the counterclaim, this court has thoroughly examined the claim and the counterclaim. The plaint, filed by the plaintiff, a public-sector entity, alleges that the 1st defendant illegally and fraudulently acquired public land, specifically Machakos Municipality Block 1/583 (hereinafter referred to as the suit property), which had been illegally allocated to Peter Kanyi. As for the 2nd defendant, who was at the time the Commissioner of Lands, the plaintiff alleges that he acted ultra vires his statutory powers and functions by unlawfully and fraudulently issuing a certificate of lease for the suit property to the 1st defendant. Consequently, the plaintiff seeks various reliefs against the defendants, including the cancellation of the title documents by the Chief Land Registrar, the office which has superseded the Commissioner of Lands. 15.In the counterclaim, the 1st defendant has joined Peter Kanyi’s estate, the Chief Land Registrar and the County Government of Machakos (the alleged allotee of government land) as parties. He asserts that the suit property was legally acquired, that he conducted due diligence, and that he is an innocent purchaser for value who has made developments on the suit property worth Kshs. 15,000,000/-. He seeks a declaration that he is the owner of the suit property or that he be compensated. 16.With all due respect to the plaintiff, the counterclaim bears a direct nexus to the plaint as it relates to the suit properties, and the assertions contained therein against the parties involved pertain to individuals mentioned in the plaint. Therefore, hearing the counterclaim and the claim in this suit contemporaneously will reduce multiplicity of suits, and additionally, the court is satisfied that the counterclaim can be effectively handled alongside the plaint. Accordingly, it finds that the 1st defendant should be permitted to file his counterclaim. 17.Ultimately, this court finds that the reliefs sought in the notice of motion dated 22 November 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 1st defendant shall, within 21 days of the date hereof, file and serve the amended defence and counterclaim together with summons (as the case may be).b.Thereafter, the other parties shall be at liberty to file their pleadings and amendments (as the case may be) within 21 days of service.c.A mention date shall be issued to confirm compliance.d.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.Miss Winny Chepngetich for Culent Lunyolo for plaintiff.Mr Kyalo holding brief Mr. Mutua Senior Counsel for 1st defendant/applicant.Mr. Thuo for 2nd defendant.