1. Vide an application dated 17th April 2023, the Plaintiffs sought 14 days to amend their further Plaint to include the Naivasha Industrial Complex as the 5th Defendant, the National Land Commission as the 6th Defendant, as well as additional causes of action. They also sought leave for the Defendants to file their response to the further amended Plaint within 14 days of service. In a ruling dated 6th June 2023, the court granted the leave sought. There were no proceedings up to 29th January 2024.
2. Subsequently, the Plaintiff filed a further amended Plaint on 26th June 2023, indicating that the same was filed pursuant to leave granted on the 12th May 2023. A perusal of the court record revealed that no such leave was granted, and indeed no proceedings took place on the date in question. Up to this point, what was therefore on record was the further amended Plaint of 6th May 2023.
3. Subsequently, the matter was transferred to this court, and on 11th March 2024, the court directed the parties to comply with Order 11 of the CPR. There was no compliance within the time specified by the court, as the parties sought additional time, believing that the further-amended Plaint of 26th May 2023, which had been filed without leave, was the operative Plaint.
4. However, by an application dated 9th October 2024, the Plaintiffs sought to amend the Plaint dated 26th May 2023, which had removed the 3rd Plaintiff. In a ruling dated 20th March 2025, the application was dismissed on the ground that no such orders had been issued to strike out the 3rd Plaintiff. In essence, the Plaint dated 26th May 2023 had been filed without leave.
5. This being the case, it goes without saying that what was properly on record was an amended Plaint dated 6th July 2019, (pursuant to a ruling of 30th April 2019) for which the Parties had not complied with despite the order of the court of 16th June 2023 in respect of the amendment of the same.
6. On 24th June 2025, the parties beseeched the court to let them put their houses in order, whereupon the court granted them the prayers sought.
7. Subsequently, the Plaintiff filed their trial bundles with an amended Plaint of 1st July 2025, and on the 29th September 2025, the parties consented to the matter proceeding to a hearing. The hearing did not proceed because an application dated the 27th November 2025 had been filed, which had to be disposed of in the first instance. After the application was disposed of in a ruling delivered on 19th February 2026, the parties again consented to the matter proceeding to a hearing, and today's (4th May 2026) date was taken.
8. As the matter came up for hearing, M/s Gatu, counsel for the 3rd and 5th Respondents, objected to the matter proceeding for the reason that the further amended Plaint dated 1st July 2025, which they had been served with in the trial bundle, was filed without leave and therefore the only Plaint that was properly on record was the one dated the 6th May 2019 which she sought that parties relay on during the hearing/proceedings. She argued that the Plaintiffs had not sought to expunge the Plaint dated 26th May 2023.
9. I beg to differ with Counsel's objection/submissions because, based on the chronological history of the matter, while the 3rd and 5th Respondents’ Counsel focused on a strict, technical interpretation of the operative Plaint, her argument overlooked the court's subsequent directions and the principle of procedural fairness over technicality.
10. On 24th June 2025, after the court noted that previous amendments in the Plaint of 26th May 2023 were filed without leave or were procedurally defective, the court specifically granted the parties leave to put their houses in order.
11. This housekeeping order is a broad discretionary power used by the court to cure previous procedural irregularities. The Amended Plaint dated 1st July 2025 was subsequently filed immediately after this directive. It should be viewed as the Plaintiffs’ attempt to regularize the record in direct compliance with the court’s invitation to fix the previous mess.
12. The 3rd and 5th Respondents were therefore estopped from objecting to the 1st July 2025 Plaint because of their subsequent conduct, which was that on 29th September 2025, the parties consented to the matter proceeding to a hearing. On the 24th November 2025, when the same came up for hearing, no complaint was raised regarding the Plaint dated the 1st July 2025, and the same was the case on the 15th December 2025. After an interlocutory application was resolved in February 2026, the parties again consented to today’s hearing date.
13. By consenting to a hearing date while in possession of the 1st July 2025 Plaint, the Respondents effectively waived any irregularity in the filing of that document. One cannot agree to proceed to trial on a set of pleadings and then object to the validity of those same pleadings on the morning of the hearing.
14. Under the Oxygen Principle, Article 159 of the Constitution and Sections 1A & 1B of the Civil Procedure Act, the court's overriding objective is to facilitate the just, expeditious, and cost-effective resolution of disputes.
15. Reverting to the 6th July 2019 Plaint as requested by M/s Gatu for the 3rd and 5th Respondents, would render the last seven years of litigation, including the addition of the 5th and 6th Defendants, a nullity. It would cause a massive procedural backslide, necessitating fresh discovery and further delays, which is contrary to the interests of justice.
16. The court itself recognized the confusion regarding the 26th May 2023 filings in its 20th March 2025 ruling. By allowing the matter to move forward to the trial bundle stage in July 2025, the court had de facto accepted the updated record. If the 1st July 2025 Plaint is what is contained in the Trial Bundle, which the 3rd and 5th Respondents’ Counsel has had since July 2025, it is the document upon which the issues for trial have been framed.
17. If the 3rd and 5th Respondents believed the 1st July 2025 Plaint was a nullity or filed without leave, they should have filed an application to strike it out or expunge it shortly after service. Waiting until the day of the hearing to raise an ‘’abash’’ objection regarding a document filed nearly a year ago is indeed an abuse of the court process and is typically discouraged by the bench. I find that the 1st July 2025 Plaint is the valid operative pleading for reasons that it was filed pursuant to the 16th June 2023 order and a subsequent the court’s “house-in-order’’ directive of 24th June 2025 where the 3rd and 5th Respondents consented to the hearing twice after being served with it.
18. Procedural irregularities are curable and should not be used to defeat the hearing of a case on its merits.
Dated and delivered via Microsoft Teams at Naivasha this 4th day of May 2026.
M.C. OUNDO
ENVIRONMENT & LAND COURT – JUDGE