The application before me is dated 13th January 2025. The plaintiffs seeks to amend the plaint dated 18th October 2017 and include in their pleadings and documents containing National Environmental Management Authority report dated 4th October 2021. The plaintiffs pray that after grant of leave to amend, the draft amended plaint be deemed as properly filed.
According to the plaintiffs the amendment will assist the court in the determination of the real issues in controversy between the parties in this case and that the N.E.M.A report will shed light to the extent of the damage to the plaintiffs land. The plaintiffs deny that the amendment will alter the character of the suit and state further that the respondents have failed to show how the amendment will alter the character of the suit. According to the plaintiff no prejudice will be suffered by the 1st defendant if the court grants leave to amend since the defendant will be given an opportunity to cross examine the witness on the report by N.E.M.A.
The applicant submits that the application for amendment made before the start of hearing of the suit should be readily allowed by the court if prejudice is not caused to the other party and if they are designed to help place before the court all the relevant matter for determination of the real issues in the dispute between the parties.
The 1st defendant opposed the application on grounds that the amendments seek to introduce multiple new element including assertion that no public participation was conducted in 2013 when the farm was established. That is also alleges that the 2nd defendant as constructed after the impugned decision:
That the Application is misconceived, vexatious, an afterthought and an abuse of the court process. The Applicants have not demonstrated any legal basis warranting the amendments sought. The Application lacks merit and should be dismissed in limine
The respondents contend that the Plaintiffs have not satisfied the legal threshold for amendment of pleadings as required under Order 8, Rule 5 of the Civil Procedure Rules, 2010. The proposed amendments are neither necessary for determining the real questions in controversy nor intended to correct any inadvertent error or omission. The documents sought to be introduced are documents used in implementing a post judgment pleading and therefore not relevant for the determination of the issues in question.
The respondents rely on the case of Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000] eKLR where the court emphasized that amendments should not be allowed where they introduce a completely new cause of action or prejudice the opposing party.
That the proposed amendments contravene Order 8, Rule 3 of the Civil Procedure Rules 2010, which stipulates that amendments before trial should not prejudice the other party. The amendments sought at this, stage are manifestly prejudicial to the 1st Respondent, as they would alter the fundamental character of the suit and introduce evidence that was not part of the initial proceedings.
The respondent contends that the Court of Appeal in Nakuru COA No. E073 of 2019, set aside the judgment delivered on June 2019 and directed a retrial before a different court in the Environment and Land Court (ELC).The Plaintiffs now seek to introduce new documents and amend the pleadings in a. manner inconsistent with the appellate court's decision.
The respondent relies further on the case of Ochieng & Others v First National Bank of Chicago [1995] eKLR held that an appellate court determination is binding, and parties cannot circumvent it by seeking to introduce fresh evidence at the retrial stage.
That the report sought to be introduced was prepared pursuant to an order of the court in a post-judgment application and was intended to give effect to the now set-aside judgment. Given that the judgment has been nullified, the report serves no legal or evidentiary purpose ill the retrial. Allowing its introduction would amount to re- opening issues that were conclusively determined and would prejudice the 1st Respondent.
The appellate court/s: order remanding the matter for retrial did not contemplate the introduction of new evidence or supplementation of the Plaintiffs' case. The principle established in Francis Origo & Another v Jacob Kimali Mungala (2005) eKLR dictates that amendments and introduction; of new evidence should: not be used to alter the. nature of a: case after judicial determinations have been made.
That allowing the amendments at this stage would prejudice the 1st Respondent and contravene the principle of expeditious justice under Article 159(2)(b) of the Constitution of Kenya, 2010. Granting the prayers sought would cause undue delay and disrupt the orderly conduct of proceedings, contrary to the overriding objective of the Civil Procedure Act as stated in Abu Chiaba Mohamed v Mohamed Bwana Bakari & 2 Others [2005] eKLR.
Numerous judicial precedents have addressed the subject of amendment of pleadings.
The case of Coffee Board of Kenya v Thika Coffee Mills Limited & 2 others, CA No. 94 of 2003 [2014] eKLR is relevant where the Court of Appeal considered the principles stated in Mulla, The Code of Civil Procedure, 18th Ed, Vol 2 at pages 1751-1752 were adopted as follows:
i.All amendments should be allowed which are necessary for determination of the real controversies in the suit;ii.The proposed amendment should not alter and be a substitute of the cause of action on the basis of which the original list was raised;
iii.Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts would not be allowed to be incorporated by means of amendment;
iv.Proposed amendment should not cause prejudice to the other side which cannot be compensated by means of costs;
v.Amendment of a claim or relief barred by time should not be allowed;
vi.No amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time;
vii.No party should suffer on account of the technicalities of law and the amendment should be allowed to minimize the litigation between the parties;
viii.The delay in filing the petitions for amendment of the pleadings should be properly compensated by costs;
ix.Error or mistake, which is not fraudulent, should not be made the ground for rejecting the application for amendment of pleadings.”
I have considered the application before me and do find that the 1st defendant has not demonstrated that the amendment of plaint will prejudice their case. Prejudice is a condition that can on be demonstrated only by way of affidavit and not grounds of opposition. The respondent has not demonstrated how N.E.M.A report will prejudice the defendant’s case. The plaintiff on the other hand has demonstrated that the NEMA report will assist the court to understand the extent of damage suffered by the plaintiff if any.
Application is allowed. The amended plaint to be filed and served within 7 days.
According to the plaintiffs the amendment will assist the court in the determination of the real issues in controversy between the parties in this case and that the N.E.M.A report will shed light to the extent of the damage to the plaintiffs land. The plaintiffs deny that the amendment will alter the character of the suit and state further that the respondents have failed to show how the amendment will alter the character of the suit. According to the plaintiff no prejudice will be suffered by the 1st defendant if the court grants leave to amend since the defendant will be given an opportunity to cross examine the witness on the report by N.E.M.A.
The applicant submits that the application for amendment made before the start of hearing of the suit should be readily allowed by the court if prejudice is not caused to the other party and if they are designed to help place before the court all the relevant matter for determination of the real issues in the dispute between the parties.
The 1st defendant opposed the application on grounds that the amendments seek to introduce multiple new element including assertion that no public participation was conducted in 2013 when the farm was established. That is also alleges that the 2nd defendant as constructed after the impugned decision:
That the Application is misconceived, vexatious, an afterthought and an abuse of the court process. The Applicants have not demonstrated any legal basis warranting the amendments sought. The Application lacks merit and should be dismissed in limine
The respondents contend that the Plaintiffs have not satisfied the legal threshold for amendment of pleadings as required under Order 8, Rule 5 of the Civil Procedure Rules, 2010. The proposed amendments are neither necessary for determining the real questions in controversy nor intended to correct any inadvertent error or omission. The documents sought to be introduced are documents used in implementing a post judgment pleading and therefore not relevant for the determination of the issues in question.
The respondents rely on the case of Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000] eKLR where the court emphasized that amendments should not be allowed where they introduce a completely new cause of action or prejudice the opposing party.
That the proposed amendments contravene Order 8, Rule 3 of the Civil Procedure Rules 2010, which stipulates that amendments before trial should not prejudice the other party. The amendments sought at this, stage are manifestly prejudicial to the 1st Respondent, as they would alter the fundamental character of the suit and introduce evidence that was not part of the initial proceedings.
The respondent contends that the Court of Appeal in Nakuru COA No. E073 of 2019, set aside the judgment delivered on June 2019 and directed a retrial before a different court in the Environment and Land Court (ELC).The Plaintiffs now seek to introduce new documents and amend the pleadings in a. manner inconsistent with the appellate court's decision.
The respondent relies further on the case of Ochieng & Others v First National Bank of Chicago [1995] eKLR held that an appellate court determination is binding, and parties cannot circumvent it by seeking to introduce fresh evidence at the retrial stage.
That the report sought to be introduced was prepared pursuant to an order of the court in a post-judgment application and was intended to give effect to the now set-aside judgment. Given that the judgment has been nullified, the report serves no legal or evidentiary purpose ill the retrial. Allowing its introduction would amount to re- opening issues that were conclusively determined and would prejudice the 1st Respondent.
The appellate court/s: order remanding the matter for retrial did not contemplate the introduction of new evidence or supplementation of the Plaintiffs' case. The principle established in Francis Origo & Another v Jacob Kimali Mungala (2005) eKLR dictates that amendments and introduction; of new evidence should: not be used to alter the. nature of a: case after judicial determinations have been made.
That allowing the amendments at this stage would prejudice the 1st Respondent and contravene the principle of expeditious justice under Article 159(2)(b) of the Constitution of Kenya, 2010. Granting the prayers sought would cause undue delay and disrupt the orderly conduct of proceedings, contrary to the overriding objective of the Civil Procedure Act as stated in Abu Chiaba Mohamed v Mohamed Bwana Bakari & 2 Others [2005] eKLR.
Numerous judicial precedents have addressed the subject of amendment of pleadings.
The case of Coffee Board of Kenya v Thika Coffee Mills Limited & 2 others, CA No. 94 of 2003 [2014] eKLR is relevant where the Court of Appeal considered the principles stated in Mulla, The Code of Civil Procedure, 18th Ed, Vol 2 at pages 1751-1752 were adopted as follows:
i.All amendments should be allowed which are necessary for determination of the real controversies in the suit;ii.The proposed amendment should not alter and be a substitute of the cause of action on the basis of which the original list was raised;
iii.Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts would not be allowed to be incorporated by means of amendment;
iv.Proposed amendment should not cause prejudice to the other side which cannot be compensated by means of costs;
v.Amendment of a claim or relief barred by time should not be allowed;
vi.No amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time;
vii.No party should suffer on account of the technicalities of law and the amendment should be allowed to minimize the litigation between the parties;
viii.The delay in filing the petitions for amendment of the pleadings should be properly compensated by costs;
ix.Error or mistake, which is not fraudulent, should not be made the ground for rejecting the application for amendment of pleadings.”
I have considered the application before me and do find that the 1st defendant has not demonstrated that the amendment of plaint will prejudice their case. Prejudice is a condition that can on be demonstrated only by way of affidavit and not grounds of opposition. The respondent has not demonstrated how N.E.M.A report will prejudice the defendant’s case. The plaintiff on the other hand has demonstrated that the NEMA report will assist the court to understand the extent of damage suffered by the plaintiff if any.
Application is allowed. The amended plaint to be filed and served within 7 days.