https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4470

Kardale & 13 others v District Land Adjudication & Settlement Officer, Transmara & 61 others (Environment and Land Case 13 of 2021) [2026] KEELC 4470 (KLR) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4470 (KLR) Republic of Kenya In the Environment and Land Court at Kilgoris Environment and Land Case 13 of 2021 MN Mwanyale, J July 16, 2026 Between Oloisiriri Kardale & 13 others & 13 others Plaintiff and The District Land Adjudication & Settlement Officer, Transmara & 61 others & 61 others Defendant Ruling 1.The application dated 26th day of May 2026, seeks orders; -i.That the 43rd Defendant/Applicant be granted leave and for time to be enlarged so as to amend his statement of Defence so as to plead a counter-claim against the 10th Plaintiff and in terms of the draft amended statement of defence and counter-claim.ii.The court be pleased to recall the 10th Plaintiff for further cross-examination by the 43rd Defendant/Applicant limited only to matters arising from the amended Defence and counter-claim.iii.That the Plaintiffs and the 1st Defendant be granted leave to file response to the amended counter-claim within such period as this Honourable court may direct. 2.The grounds in support of the application are interaliai.The 43rd Defendant has discovered and seeks to formally plead material facts touching on fraudulent and illegal alteration of the adjudication record relating to parcel No. Transmara/Nkararo/517.ii.The intended amendments are necessary for the effectual and complete adjudication of all issues in controversy between the parties.iii.That the 10th Plaintiff has already testified and it is necessary that he be recalled for further cross-examinations limited to matters raised in the counter-claim. 3.The application is further supported by the supporting affidavit of the 43rd Defendant/Applicant Mr. Wilson Leparan Kurao; in which he deposes interalia thati.That the suit involves various parcels in Nkararo Adjudication section including Transmara/Nkararo/517 which was allocated to him after determination of objection proceedings No. 441 in his favour.ii.The deponent annexed a draft Amended defence and counter-claim as well as reiterated the grounds in support of the application in his depositions, stating that he had not been able to file a copy of the adjudication record as it had not been certified since the 1st and 57th Defendants were not in the office. 4.This application was filed on a day that the matter had been scheduled for hearing and the court directed service of the same on the Respondents Advocates who were present in court on the said date. 5.Mr. Mbithi and Mr. Ochwangi for the 2nd, 4th, 49th, 54th, 60th and 61st Defendants were not opposed to the application, while Ms. Ngira for 1st, 3rd and 57th Defendants as well as Mr. Nanda for the plaintiffs indicated that they would file responses to the said application. 6.It is to be noted that the Application is against the 10th Plaintiff, Mr. Olemeitomei Semeiyioi who testified as P.W.2 on 10.07.2024 wherein he laid claim on Transmara/Nkararo/517, which he said was registered in the name of the 43rd Defendant; but the record does not show that he was cross-examined by the Advocate then appearing for the 43rd Defendant. 7.Ms. Ngira for the 1st, 3rd and 57th Defendants/Respondents did not file any response to the application and neither did she file submissions, while Mr. Nanda for the Plaintiffs and in particular the 10th Plaintiff in so far as this application is concerned filed a Response but his submissions were not on record at the time of writing this Ruling. 8.On behalf of the 10th Plaintiff/Respondent the replying affidavit deposes interalia that; -i.The application is frivolous mischievous, lacks merit and incompetent and applicant has demonstrated chronic misuse and abuse of court process.ii.Application is solely calculated to delay, obstruct and defeat finalization of this matter, as the application does not merit granting of the order sought.iii.That the 43rd defendant delayed in filing the counter-claim yet he was served with the plaint since 2012 and matter certified ready for hearing in 2021 September.iv.That an amendment would greatly prejudice the 10th Defendant/Respondent and the other Plaintiffs as well.v.That he testified and was cross-examined and the Applicant is indolent and the counter-claim will reopen the case where more than 5 witnesses have testified. 9.The Applicant filed lengthy submissions in which he ultimately urged the court to allow the application so that the whole issue in controversy may be dealt with; once and for all. He placed reliance on Articles 50(1) and 159(2) (d) of the constitution, sections 1A 1B and 3A and 100 of the civil procedure Act, as well as the decision in Central Kenya Ltd Vs. Trust Bank Ltd (2000). St. Patricks Hill school Vs. Bank of Africa (Kenya) Ltd (2018) eKLR. 10.No submissions were filed by Mr. Nanda for the 10th Defendant/Respondent, and none were considered. 11.Having analyzed the Application, the Response as well as the submissions and considered the law, the court frames the following as issues for determination, as follows; -i.Whether or not the application is merited?ii.What reliefs ought to issue?iii.Who bears the application? Analysis and Determination 12.As noted elsewhere in this Ruling, the 10th Plaintiff laid claim to Transmara/Nkararo/517 in his testimony and that the counter-claim sought to be introduced by way of Amendment of the statement of defence filed by the 43rd Defendant is meant to counter-claim the same said parcel; and the proposed Amendment will not affect the other parties in the matter. 13.I have looked at the draft statements of defence and counter-claim, the same does not affect the other parties as the counter-claim pleaded at paragraphs 24 to 29 and the reliefs sought therein are solely against the 10th Plaintiff/Respondent, hence no prejudice necessitating Amendment of pleadings and filing of documents by the other parties will be occasioned to the other parties and the contention by the 10th Plaintiff in this regard is thus unfounded. 14.The court finds that the application for amendment is justifiable under section 100 of the civil procedure Act and meets the test set out in the decision in Joseph Ochieng and 2 Others Trading as Aquiline Agencies Vs. First National Bank of Chicago (1995) KECA 31 KLR as quoted in the decision in Family Bank Ltd Vs. Step up Holding Ltd (Civil Appeal E004 (2022) 2026 KECA 1235) where the court set the principles under which courts may grant leave to amend the pleadings as follows; -“(a)The power of the court to allow amendments is intended todetermine the true substantive merits of the case;(b)The amendments should be timeously applied for;(c)Power to amend can be exercised by the court at any stage of theproceedings.(d)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;(e)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 limitations Act subject however to powers of the court to still allow an amendment notwithstanding the expiry of the current period of limitation…” 15.Applying the above test to the circumstances of this case the court thus allows the Amendment. With regard to the prayer of recalling of the witness (PW2) for cross-examination limited to the issues raised in the counter-claim the Respondent did not indicate that they will be hardship occasioned to him. 16.The court is equally persuaded by the reason advanced by the Applicant that the initial counsel he instructed passed on, and in the ensuing time he instructed the immediate previous counsel who has since been appointed to the Bench hence, the need to change to the new Advocates who has deemed it necessary to plead the counter-claim and recall the witness. 17.The court thus allows the Application in terms as follows; -i.Leave is granted to the Applicant/43rd Defendant to file and serve his Amended statement of Defence and counter-claim, the same to be filed and served within 7 days from today, and the 43rd Defendant to file any additional witness statements and documents within 14 days from today.ii.The 10th Plaintiff shall file a Reply to defence and defence to counter-claim in respect of the 43rd Defendants, Amended defence within 7 days from date of service and shall file any additional documents and statements in respect to the 43rd Defendants Amended defence and counter-claim within 28 days from today.iii.the 10th plaintiff Mr. Olemeitomei Semeiyio shall be recalled for cross-examination by the 43rd Defendant when the matter shall next be fixed for hearing before any other witness takes to the stand.iv.The recall will be limited for cross-examination in respect for cross-examination in respect to the issues raised in the counter-claim filed by the 43rd Defendant only and thereafter a re-examination.v.Costs of the application are awarded to the 10th Plaintiff/Respondent. DATED AT KILGORIS THIS 16TH DAY OF JULY, 2026HON. M.N MWANYALEJUDGEIn the presence ofCA – Sylvia/Sandra/ClaraMr. Nanda for the PlaintiffMs. Ngira for 1st, 3rd and 57th DefendantMr. Seriani for 43rd and 59th DefendantMr. Ochwangi for 4th, 49th, 54th, 60th and 61st Defendant