https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4229

Karanja & 2 others v Njoroge & 4 others (Environment and Land Case E107 of 2022) [2026] KEELC 4229 (KLR) (12 May 2026) (Ruling) Neutral citation: [2026] KEELC 4229 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Case E107 of 2022 JA Mogeni, J May 12, 2026 Between Margaret Wangari Karanja & 2 others & 2 others & 2 others Plaintiff and Kiarie Njoroge & 4 others & 4 others & 4 others Defendant Ruling 1.The matter for determination is the Plaintiffs' Notice of Motion dated 6/05/2026, brought under Order 8 Rules 3, 5, and 8 of the Civil Procedure Rules. The Applicants seek leave to amend their Plaint for a second time to formally introduce a Limited Grant Ad Litem dated 9/11/2018 and to reopen their case for the production of the same. 2.The application is vigorously opposed by the 1st, 2nd, and 3rd Defendants via a Replying Affidavit sworn by Joel Mburu on behalf of the defense. 3.The Applicants contend that the 2nd Plaintiff, through an excusable mistake and oversight, failed to furnish his Counsel with the Limited Grant Ad Litem at the time of filing the suit. They argue that this document is crucial to establishing the 2nd Plaintiff’s locus standi to represent the Estate of Mungai Njoroge. It is their submission that the amendment is necessary to determine the real issues in controversy and that procedural technicalities should not be allowed to trump substantive justice. 4.The Respondents argue that the application is a textbook example of an abuse of Court process. They point out that the document in question has been in the Plaintiffs' possession since 2018, four years prior to the filing of this suit. They further contend that this application is a reflex action to a weakness exposed during the cross-examination of the Plaintiff. They emphasize that the trial is at its penultimate stage, with only one witness remaining, and that reopening the case would cause irreparable prejudice, necessitate fresh pleadings, and further delay a dispute that has allegedly persisted for decades. 5.The parties submitted orally on the application and I have considered their oral submissions in my decision. 6.The two issues for determination in this brief application are :i.Whether the proposed amendment is necessary for the determination of the real questions in controversy.ii.Whether the amendment at this late stage would occasion an injustice to the Respondents that cannot be compensated by costs. Legal Analysis and Determination 7.The power of this Court to allow amendments is discretionary but must be exercised within the Overriding Objective of ensuring just, expeditious, and cost-effective justice. 8.While Order 8 Rule 3 allows for amendments at any stage, the Courts are increasingly wary of eleventh-hour amendments. In this case, the Plaintiffs have already amended their pleadings once. The excuse of oversight regarding a document obtained in 2018 is difficult to reconcile with the requirement of due diligence, especially after the matter was certified ready for hearing and the Plaintiffs closed their case. 9.The Respondents argue that the Plaintiffs are seeking to panel beat their case. Indeed, where an amendment is sought to bridge a gap exposed during cross-examination, the Court must be cautious. Allowing a party to seal a hole after their case is closed undermines the trial's integrity and prejudices the party that successfully exposed that weakness. 10.However, the Court also notes that the document in question relates to locus standi the very capacity to sue. In Kenyan jurisprudence, the lack of a Grant where one is required can be fatal to a suit. To deny the amendment might lead to the suit being dismissed on a technicality rather than its merits, potentially leading to a multiplicity of suits. 11.The Court finds itself between the rock of procedural discipline and the hard place of substantive justice. While the Plaintiffs' conduct reeks of indolence, the Court is mindful of Article 159 of the Constitution. However, justice must be balanced. The Defendants have spent time and resources defending a suit based on the current pleadings. Reopening the case is a heavy burden. 12.The Court is of the view that for the suit to be determined once and for all, the capacity of the parties must be clear. However, such a massive lapse in diligence cannot go unpunished, nor can the trial be allowed to reset without consequence. 13.Accordingly, the Court orders as follows:i.The Plaintiffs' application for leave to amend the Plaint is granted on the condition that the amendment is limited strictly to the introduction of the Limited Grant Ad Litem and the clarification of capacity.ii.The Plaintiffs’ case is reopened for the sole and exclusive purpose of producing the Limited Grant Ad Litem. No new oral testimony outside this document shall be permitted.iii.The Defendants are granted leave to file Consequential Amendments to their Defenses within seven (7) days of service.iv.The Order is subject to a condition precedent which is that the Plaintiffs shall pay thrown-away costs of KES 50,000 to the 1st, 2nd and 3rd Defendants within seven (7) days from today.v.In default of payment of the said costs within the stipulated time, this application shall stand dismissed with costs, and the trial shall proceed to conclusion on the existing pleadings.vi.Hearing shall be on 27/07/2026.Orders Accordingly. DATED SIGNED AND DELIVERED VIRTUALLY AT THIKA VIA VIDEOLINK THIS 12TH DAY OF MAY, 2026.………………………MOGENI JJUDGEIn the presence of:-………………………………………….………….Plaintiffs/Applicants……………………………………….…………….1st Defendant/Respondent……………………………………….…………….2nd Defendant/Respondent……………………………………….…………….3rd Defendant/Respondent……………………………………….…………….4th Defendant/Respondent……………………………………….…………….5th Defendant/RespondentMr. Melita - Court Assistant………………………MOGENI JJUDGE