https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3531

Waweru & 4 others v Hardrock Holdings and Investments Company Limited & 2 others (Land Case E372 of 2024) [2026] KEELC 3531 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3531 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case E372 of 2024 CG Mbogo, J June 11, 2026 Between Wilson Mwangi Waweru 1st Plaintiff Loise Kabare 2nd Plaintiff Ruth Wairimu Kairu 3rd Plaintiff David Macharia 4th Plaintiff Alice Wangare Kamau 5th Plaintiff and Hardrock Holdings and Investments Company Limited 1st Defendant Joseph Ndumia Theuri 2nd Defendant and Muthaiga Dawns Limited Interested Party Ruling 1.Before me is the notice of motion dated 2nd February, 2026 filed by the 2nd defendant/applicant, and it is expressed to be brought under, Order 8 Rule 3 and Order 51 Rule 1 of Civil Procedure Rules 2010 seeking the following orders: -1.Spent.2.Leave be granted to the 2nd defendant to amend the 2nd defendant’s statement of defence and counterclaim dated 04.02.2025.3.The costs of this application be in the cause. 2.The application is premised on the grounds on its face. It is further supported by the affidavit of the 2nd defendant/applicant sworn on even date. He deposed that he had purchased and deposited on the suit property stones, sand and ballast for purposes of construction. Further, he deposed that the plaintiffs/ respondents have since impeded his access to the suit property and appropriated his building materials in disregard to the status quo orders issued on 25th September, 2024. 3.The 2nd defendant/applicant deposed that as a result, he has since lost his building materials and therefore it is necessary to effect an amendment to the counterclaim seeking the appropriate remedy for the loss of the building materials. He deposed that it was in the interest of justice to allow him bring out the whole claim for the effectual and speedy determination of the real issues between the parties. He added that the plaintiffs/respondents shall not suffer any prejudice if the orders sought are granted since similar leave shall apply to them to file and serve an amended reply to the same. 4.The application was opposed vide the replying affidavit of the 1st plaintiff/respondent sworn on 23rd February, 2026. He deposed that the amended defence and counterclaim sought to introduce new issues at an advanced stage of the case. He added that plaintiffs/respondents main witness had already testified, completed examination-in-chief, undergone cross-examination and partially re-examined. 5.The 1st plaintiff/respondent averred that the witness already provided evidence based on the current pleadings and that allowing amendments at this stage would cause them grave prejudice. He contended that the 2nd defendant/applicant had ample opportunity to seek amendments before the hearing commenced but failed to do so. 6.He deposed that the application was an afterthought designed to fill gaps in the defendants’ case that were exposed during the hearing. Further, that the 2nd defendant/applicant has not sought to set aside or vacate the proceedings already conducted. He added that without such a request, the amendments cannot be accommodated without causing procedural confusion and injustice. 7.It was further deposed that permitting far-reaching amendments after a trial has started contradicted the principles of fairness, procedural certainty and the orderly administration of justice. 8.This court directed the parties to argue the application through written submissions. By the time of writing this ruling, neither of the parties had filed their submissions. Be that as it may, I have considered the application and the replying affidavit thereof. The sole issue for determination is whether the 2nd defendant/applicant should be granted leave to amend his defence and counterclaim dated 4th February 2025. 9.Section 100 of the Civil Procedure Act, provides as follows:-“The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding”. 10.Order 8, Rules 3 and 5 of the Civil Procedure Rules, provides 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.(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). . . . . .(4). . . . . .(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.” 11.Further, Order 8, Rule 5 of the Civil Procedure Rules provides: -“(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.” 12.The above provisions of the law demonstrate that indeed amendment of pleadings may be allowed at any time of the suit. The court however has discretion to either allow or deny the amendment hence the need to seek leave. In making this decision, the court needs to look at all circumstances of the matter. If the amendment will greatly prejudice the other party so as to lead to an injustice, then the amendment may be disallowed. But if no injustice is going to be caused to the other party, the court may allow the amendment with necessary directions. Having said that, it is preferable that applications to amend come early in the proceedings. Late amendments are more likely to cause injustice as compared to an amendment coming before the hearing of the suit commences. 13.In the case of Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] KECA 367 (KLR), the Court of Appeal stated as follows:-“The overriding consideration in applications for such leave is whether the amendments are necessary for the just determination of the controversy between the parties. Likewise mere delay is not a ground for declining to grant leave. It must be such delay as is likely to prejudice the opposite party beyond monetary compensation in costs. The policy of the law is that amendments to pleadings are to be freely allowed unless by allowing them the opposite side would be prejudiced or suffer injustice which cannot properly be compensated for in costs.” 14.It is not in contention that the matter has advanced being that the plaintiffs/ respondents’ case has already commenced hearing. Notably, one of the plaintiffs’ witnesses has already testified to the extent of having been cross-examined. On the other hand, I have perused the draft amended defence and counter claim. In the amended statement of defence, the only amendment sought in it is the description of the parties in paragraph 2. More importantly, the amended counterclaim does not seek to fundamentally alter the cause of action save to present the claim as pleaded by the 2nd defendant/ applicant which in my view is not prejudicial to the plaintiffs/ respondents. 15.While I note that the plaintiffs/respondents witness is yet to complete examination of their witness, I am of the view that amendment of the pleadings at this stage is necessary to enable the court to determine all the issues once and for all. Equally, the plaintiffs/respondents will have a chance to amend their defence to the counterclaim accordingly. Additionally, costs would also be an appropriate remedy in the circumstances. 16.From the above, I find merit in the notice of motion dated 2nd February, 2026 and I grant the following prayers:-1.Leave is hereby granted to the 2nd defendant/applicant to amend his statement of defence and counterclaim dated 4th February, 2025 as per the draft amended statement of defence and amended counterclaim.2.For clarity, the annexed draft amended statement of defence and amended counterclaim is deemed as duly filed upon payment of requisite fees payable within 3 days from the date hereof.3.Upon paying the requisite fees, the 2nd defendant/applicant to serve the same upon the plaintiffs/respondents forthwith to enable the plaintiffs/respondents file their defence to the amended counterclaim if need be.4.Costs of this application due to the plaintiffs/respondents is assessed at Kshs.45,000/.5.Further mention on 09th July, 2026 for further directions.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 11TH DAY OF JUNE, 2026.HON. MBOGO C.G.JUDGE11/06/2026.In the presence of:Mr. Benson Agunga - Court assistantMs. Judith Aura for the Plaintiffs/RespondentsMs. Kulohoma holding brief for Mr. Echesa for the 2nd Defendant & the Interested PartyNo appearance for the 1st Defendant