https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3931

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CASE NO. E045 OF 2021** **PATRICK MUTHOKA & 70 OTHERS:::::::::::::::::::::::::::::::::PLAINTIFF** **VERSUS** **RAPHAEL MUSYOKI NDETI::::::::::::::::::::::::::::::::::::1ST DEFENDANT** **WAVINYA NDETI ODUMWOLE:::::::::::::::::::::::::::::::2ND DEFENDANT** **RULING** The application is dated 10th September 2025 and is brought under Order 8 Rules 3(1)(2)(3)(5), Rules 5(c), Rule 8 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking the following orders; 1. That the Plaintiffs/Applicants herein be allowed to amend some of the Plaintiffs and substitute with others and add others who were not in the original suit. 2. That this Court grant leave to add more statements and documents of parties who were not party to the suit initially. 3. Costs of this application be in cause. The application is grounded on the following grounds that the Plaintiffs who are being included in the suit were not aware of the suit and others were not available at the time of filing the suit. The Plaintiffs being removed from the suit were later found to be occupying a different parcel of land and not the suit property and others had sold their parcels of land to other people and hence no interest in the suit. The amendment will not cause much change to the suit. The Defendants will not suffer any prejudice if the amendment is allowed. This court has considered the application and the submissions therein. Order 8 Rule 3 of the Civil Procedure Rules provides for amendment of pleadings with leave of court as follows; *(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.* Further, Order 8, rule 5 gives the court the general power to amend. *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.* The 1st Respondent strongly opposed the application and pointed out that the Applicant is guilty of laches. That they have not provided satisfactory reasons for the delay. That the matter has gone through the pretrial process and the Respondents will be prejudiced. Be that as it may, Section 1A of the Civil Procedure Act provides for the overriding objective of the Civil Procedure Act and the rules made thereunder and provides as follows: *“1A (1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.* *(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).* *(3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.* Section 1B of the same Act, on the other hand provides for the duty of court and states: *(1) For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims —* *(a) the just determination of the proceedings;* *(b) the efficient disposal of the business of the Court;* *(c) the efficient use of the available judicial and administrative resources;* *(d) the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and* *(e) the use of suitable technology.* The proposed amendment according to the Plaintiff seeks to include in the suit Plaintiffs who were not aware of the suit and others were not available at the time of filing the suit. That the Plaintiffs being removed from the suit were later found to be occupying a different parcel of land and not the suit property and others had sold their parcels of land to other people and hence no interest in the suit. In the case of Central Kenya Ltd vs Trust Bank & 4 Others, CA No. 222 of 1998, the court stated that, the guiding principle in amendment of pleadings and joinder of parties is that: *“all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs.”* On the issue of amendment of pleadings in the case of AAT Holdings Limited vs Diamond Shields International Ltd (2014) eKLR,the court cited the principles as set out by the Court of Appeal in Central Kenya Ltd Case No. 222 OF 1998as shown below; *(i) That are necessary for determining the real question in controversy.* *(ii) To avoid multiplicity of suits provided there has been no undue delay.* *(iii) Only where no new or inconsistent cause of action is introduced i.e. if the new cause of action does not arise out of the same facts or substantially the same facts as a cause of action.* *(iv) That no vested interest or accrued legal rights is affected; and* *(v) So long as it does not occasion prejudice or injustice to the other side which cannot be properly compensated for in costs.* It is quite clear from decided cases that the discretion of a trial court to allow amendments of a Plaint is wide and unfettered except it should be exercised judicially upon the foregoing defined principles. Be that as it may, I have also perused the proposed Amended Plaint and I find it seeks to include new Plaintiffs and remove others. In these circumstances, I find that this application does not contravene order 1 rule 8 of the Civil Procedure Rules. I find that this application is merited and I grant it as prayed. Costs to be in the cause. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 23RD DAY OF JUNE 2026.** **N.A. MATHEKA** **JUDGE**