https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3067

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC CASE NO. E506 OF 2024** **THE REGISTERED TRUSTEES OF** **THE AGRICULTURAL SOCIETY OF KENYA ..……….....………… PLAINTIFF** **=VERSUS=** **THE REGISTERED TRUSTEES OF** **NAIROBI POLO CLUB …………………………………………… DEFENDANT** **RULING** 1. By a Notice of Motion dated 29th January 2026, brought under Order 8 Rules 3 and 5 of the Civil Procedure Rules, Sections 1A, 1B, and 3A of the Civil Procedure Act, the Plaintiff/Applicant seeks the following orders: * 1. ***Spent.*** 2. ***That the Plaintiff be granted leave to amend its Plaint dated 4th December 2024 in terms of the Draft Amended Plaint annexed hereto.*** 3. ***That the Amended Plaint be deemed as duly filed and served upon payment of the requisite Court fees.*** 4. ***That the costs of this Application be in the cause.*** 2. The application is based on the grounds appearing on its face together with the supporting affidavit of Caren Jaguga, the Plaintiff’s Legal Manager, sworn on even date. **THE APPLICANT’S CASE** 1. The deponent averred that the Plaintiff commenced this suit by way of a Plaint dated 4th December, 2024, seeking reliefs arising from the Defendant’s alleged unlawful entry, occupation, and use of its land known as Pitch B. 2. She further averred that, after review and on the advice of Counsel, it had become necessary to amend the plaint to include a prayer for mesne profits as a consequential relief arising from the unlawful occupation of the suit property. 3. She argued that the draft amended plaint does not introduce any new, inconsistent, or prejudicial cause of action. She maintained that the proposed amendment is necessary to enable the Court to effectively and fully resolve the real issues in controversy between the parties. 4. She asserted that the Defendant would not suffer any prejudice if the Plaintiff is granted leave to amend its plaint. In conclusion, she urged the Court to allow the application as prayed. 5. Top of Form **THE DEFENDANT’S CASE** 1. Bottom of Form 2. The Defendant filed Grounds of Opposition dated 18th February, 2026, and a replying affidavit sworn by Susan Maina, the Defendant’s Sponsorship and Events Manager, in opposition to the application. 3. The Defendant argues that the proposed amendment seeks to introduce a new substantive claim for mesne profits, which was not pleaded in the original plaint. The Defendant asserts that the claim for mesne profits is a claim for special damages that must be specifically pleaded and proved, and cannot be added belatedly by a later amendment. 4. It was further argued that the application had been made inordinately late, after the suit had undergone pre-trial compliance and was certified ready for hearing, with a hearing date fixed for 10th February 2026. The Defendant contended that the timing of the application suggested that it was intended to derail the scheduled hearing and prejudice the Defendant’s prepared defence. 5. The deponent stated that the facts on which the proposed claim for mesne profits is based were within the Plaintiff’s knowledge at the time the suit was filed. She argued that no new matter had arisen to justify the amendment, asserting that the application was an afterthought. 6. She maintained that the proposed amendment would alter the nature, scope, and character of the suit by introducing a monetary claim for millions of shillings. She argued that the Defendant would suffer prejudice if the application is allowed since it had prepared its defence, witness statements, and trial strategy based on the original pleadings. The deponent asserts that permitting the amendment would necessitate the Defendant to restructure its defence, conduct new investigations, present additional evidence, and potentially call supplementary witnesses. 7. It was argued that the application offends Order 8, Rules 3 and 5 of the Civil Procedure Rules, was made in bad faith, and would undermine the overriding objective under Sections 1A and 1B of the Civil Procedure Act by delaying the expeditious disposal of the suit. The Defendant maintained that the amendment was untenable as the claim for mesne profits was statute-barred due to periods preceding the filing of the suit. 8. The application was canvassed by way of written submissions. 9. At the time of writing this ruling, the Applicant had not filed its submissions as directed. 10. Top of Form **THE DEFENDANT’S SUBMISSIONS** 14. The Defendant filed its submissions dated 7th May 2026. 1. On behalf of the Defendant, Counsel submitted that the proposed amendment is untenable, oppressive, and prejudicial, as it was filed after the close of pleadings, the completion of pre-trial compliance, and after the matter was certified as ready for hearing. 2. Regarding the applicable law, Counsel relied on Section 100 of the Civil Procedure Act and Order 8, Rules 3, 5, and 7 of the Civil Procedure Rules, to submit that the discretion to permit the amendment of pleadings must be exercised in accordance with established principles, and not in a manner that enables a party to reconstruct its case after the issues have crystallised. To support this argument, Counsel cited **Maina v Wangu & 2 Others [2026] eKLR**, **Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000] eKLR, Joseph Ochieng & 2 Others t/a Aquiline Agencies v First National Bank of Chicago [1995] eKLR**, and **Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR.** 3. Counsel submitted that the application was brought after an inordinate and unexplained delay. 4. Counsel further submitted that the Plaintiff has not been shown that the amendment was necessitated by the discovery of fresh evidence since it was aware of all material facts before instituting the suit. 5. Counsel submitted that the application is a belated attempt to reopen and prolong litigation after the matter had been certified as ready for hearing. To support this point, Counsel cited **Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR and AAT Holdings Limited v Diamond Shields International Limited [2014] eKLR.** 6. Regarding the nature of the proposed amendment, Counsel submitted that the Plaintiff seeks to introduce a claim for mesne profits, which is a substantive monetary claim requiring specific pleading, strict proof, and independent adjudication. To support this point, Counsel relied on the definition of mesne profits outlined in Section 2 of the Civil Procedure Act. 7. Counsel submitted that mesne profits constitute special damages which must be specifically pleaded and strictly proved. To support this argument, reliance was placed **on Luva v Kimbio & 3 Others [2023] eKLR**. 8. Counsel relied on **Joseph Ochieng & 2 Others t/a Aquiline Agencies v First National Bank of Chicago [1995] eKLR** and **Eastern Bakery v Castelino [1958] EA 461** tosubmit that the amendment would expand the scope of the dispute and transform the suit from one based on trespass, injunctive relief, and limited special damages into a broader commercial claim requiring fresh evidence, discovery, valuation, and accounting**.** 9. With regard to prejudice, Counsel submitted that permitting an amendment at this stage would necessitate the Defendant to amend and restructure its defence, undertake new investigations, retrieve and analyze historical financial and operational records, file additional witness statements and documents, engage valuation experts, reopen the pre-trial process, and adjust its entire litigation strategy. 10. Counsel argued that such prejudice cannot be remedied by an award of costs because it would undermine procedural certainty, delay the disposal of the suit, prolong litigation, and disrupt a defence based on the original pleadings. To support this argument, Counsel relied on **Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR and Institute for Social Accountability & Another v Parliament of Kenya & 3 Others [2014] eKLR.** 11. Counsel further submitted that the application undermines the overriding objective under Sections 1A and 1B of the Civil Procedure Act, which require the just, expeditious, proportionate, and affordable resolution of civil disputes. Counsel contends that the proposed amendment would reopen pre-trial processes and cause delay in a matter that was already ready for hearing, contrary to the efficient administration of justice. 12. Counsel submitted that the application was an abuse of the Court process and an attempt to delay the hearing and strategically reconfigure the dispute after the parties had already crystallised the issues for trial. To support this point, Counsel cited **Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR**, where the Court described abuse of process as the misuse of court procedure in a manner that is oppressive, vexatious, or unfair to the opposite party. 13. In conclusion, Counsel urged the Court to dismiss the application with costs. **ANALYSIS AND DETERMINATION** 1. Having considered the application, the grounds of opposition, the respective affidavits, and the Defendant’s submissions, the only issue for determination is whether the Plaintiff should be granted leave to amend the Plaint. 2. Section 100 of the Civil Procedure Act outlines the general power to amend and grants the Court discretion to allow or deny an amendment. 3. **Order 8 Rule 5 of the Civil Procedure Rules** provides as follows; ***“(1) For purposes 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.”*** 1. The law governing leave to amend pleadings is well established. The general rule is that amendments of pleadings sought before the hearing should be freely allowed if they can be made without causing injustice to the other side, and if any harm can be remedied by costs. The main principle is that an amendment should not be allowed if it causes injustice to the opposing party. 2. In **Ochieng and Others v. First National Bank of Chicago, Civil Appeal No. 147 of 1991,** the Court of Appeal outlined the principles that guide Courts in granting leave to amend pleadings, stating: ***a) The power of the court to allow amendment is intended to determine 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 the proceedings.*** ***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 be compensated to 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 reply on the Limitations Act, subject, however, to the powers of the court to still allow an amendment notwithstanding the expiry of the current period of limitation.*** 1. The Court has inherent power under Section 3A of the Civil Procedure Act to permit a party to amend its pleadings at any stage before judgment. The primary consideration in an application for leave to amend is whether the proposed amendment is necessary to determine the real question in controversy and whether it would cause prejudice to the opposing party. 2. In **Institute for Social Accountability & another v Parliament of Kenya & 2 others; Commission for the Implementation of the Constitution (Interested Party) [2014] KEHC 7356 (KLR),** the Court considered the main purpose of amendments to pleadings as follows: “***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 form of the action or proceedings.*** ***Rule 18 of the Rules clearly stipulates that the court may permit an amendment at any stage of the proceedings. The court will normally allow parties to make such amendments as may be necessary for determining the real questions in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, no new or inconsistent cause of action is introduced, and no vested interest or accrued legal right is affected and that the amendment can be allowed without an injustice to the other side.”*** 1. The legal parameters governing the amendment of pleadings from the above cited decisions can be summarised as follows: the amendment should not introduce new or inconsistent causes of action or issues; it should be made in a timely manner; it should not affect any vested interest or accrued legal right; and it should not prejudice or cause injustice to the other party, which prejudice or injustice cannot be compensated for by costs. 2. In the matter at hand, the Plaintiff seeks leave to amend its Plaint after the close of pleadings and after the matter had undergone pre-trial compliance. It is not in dispute that the matter has been certified ready for hearing. 3. The proposed amendment seeks to include a claim for mesne profits resulting from the Defendant’s unlawful occupation and commercial use of the suit property. The Defendant contends that the proposed amendment introduces a new monetary claim not pleaded in the original Plaint. It was argued that the claim for mesne profits constitutes special damages, which must be specifically pleaded and proven. 4. Section 2 of the Civil Procedure Act defines mesne profits as the profits that a person in wrongful possession of property has actually received or could, with reasonable diligence, have received therefrom, including interest on such profits. In **Luva v Kimbio & 3 Others [2023] eKLR**, the Court held that mesne profits are classified as special damages and must be specifically pleaded and proved. 5. The issue for determination is not whether the Plaintiff has proven entitlement to mesne profits but whether it should be granted leave to plead that claim. 6. The original Plaint was based on the Defendant’s alleged unlawful entry, occupation, and use of the Plaintiff’s property known as Pitch B. The proposed prayer for mesne profits arises from the same alleged facts of occupation, use, and deprivation of possession. Based on the foregoing, I find that the proposed amendment does not introduce a cause of action that is entirely different from the original suit. Instead, it seeks to add a consequential monetary relief arising from the same factual basis. 7. Regarding the issue of delay, the Defendant contends that the application was filed late, after pleadings had closed, pretrial directions had been complied with, and the matter was certified as ready for hearing. In **Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR**, the Court of Appeal stated that delay must be adequately explained. 8. Indeed, the Plaintiff ought to have pleaded the claim for mesne profits as the facts upon which the claim is based were within its knowledge when the suit was filed. The explanation that the amendment became necessary after review and advice from Counsel does not fully explain why the claim was not included in the original Plaint. 9. However, delay alone does not amount to an absolute bar to amendment. In this case, the hearing has not yet begun, and no witness has testified. The Defendant can be given an opportunity to amend its defence, file any additional documents and witness statements, and respond to the claim for mesne profits. 10. The upshot of the foregoing is that the application dated 29th January 2026 is hereby allowed in the following terms: 1. ***The Plaintiff is granted leave to amend its Plaint in terms of the Draft Amended Plaint annexed to the application.*** 2. ***The Amended Plaint is deemed as duly filed and served upon payment of the requisite court fees.*** 3. ***The Defendant shall be at liberty to file and serve an amended defence, together with any supplementary witness statements and documents limited to the amendment, within fourteen days of the delivery of this ruling.*** 4. ***The Plaintiff shall thereafter have corresponding leave to file any reply and supplementary documents, if necessary, within seven days of service.*** 5. ***The Plaintiff is awarded costs of the application.*** **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 15TH DAY OF MAY 2026.** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF:** Kering for the Plaintiff Ms Mpande holding brief for Sonaya for the Defendant Ahmed – Court assistant 1. Bottom of Form