REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BUSIA
ELC. CASE NO. 65 OF 2017
PASCAL OMELA OPALAKADI ………………..……….1ST PLAINTIFF
DEOGRASIAS KAUNYE OPALAKADI ………..……. 2ND PLAINTIFF
= VERSUS =
AUSTINE SAJABI OPALAKADI …….… DEFENDANT/APPLICANT
R U L I N G
1. What is before this Court is a Notice of Motion dated 30.4.2024, where the Defendant/Applicant seeks the following orders:
a) That leave be granted to the Defendant/Applicant to amend his statement of defence in accordance with the draft amended statement of defence and counterclaim annexed thereto
b) That the draft amended statement of defence and counter claim be deemed as duly filed upon payment of requisite filing fees.
c) That the costs of the application be in the cause.
2. It is premised on grounds on its face and on the supporting affidavit of Austine Sajabi Opalakadi, where he avers that the Plaintiffs instituted suit against him on 23.3.2017 and that since the filing of his defence to the plaint, there are new developments that have taken place touching on the subject matter which require him to file a new counterclaim.
3. That both the claims in the main suit and the counterclaim can be determined together to enable the Court to conclusively determine the dispute between the parties herein and also to avoid duplicity of suits.
4. That the counterclaim raises pertinent issues which should be addressed together with the main suit and a draft amended defence and counterclaim annexed thereto.
5. That the introduction of the counterclaim has been necessitated by the new development, which includes the destruction of the Defendant’s property without any justifiable cause.
6. In response to the Application, the Plaintiffs filed a replying affidavit dated 3.7.2026, sworn by the 1st Plaintiff.
7. Where he avers that the application to amend the defence to introduce a counterclaim lacks merit and should be declined. And that he filed the re-amended plaint on 15.7.2022, where the Defendant followed up by filing an amended defence on 19.9.2022.
8. That he further filed the Plaintiffs’ witness evidence affidavit on 22.3.2023, and the Plaintiffs’ further witness evidence affidavit on 25.4.2023. And these marked the close of proceedings.
9. That on 30.5.2024, he testified and was examined by the defence counsel who had abandoned the application for amendment.
10. That the case was only remaining with the testimony of his brother Degrasius based on the same evidence affidavits before they could close their case.
11. That the Defendant’s move to bring up his initially abandoned application for amendment this late in the proceedings is an afterthought and only aimed at delaying and prejudicing the Plaintiffs’ case.
12. That after he testified, the case has come up for further hearing over seven (7) times, in which the Defendant has never pursued his desire to amend.
13. In their submissions dated 2.7.2026, the Plaintiffs urged the Court to decline the application for the following reasons; the application has been revived after a long period of unexplained delay taking into account the fact that the matter has progressed to hearing, the amendment as sought will prejudice the Plaintiffs case and that the Plaintiffs have expended time and resources in following up with their case since the year 2017 which cannot be easily compensated by any award of costs.
ANALYSIS AND DETERMINATION:
14. The issue for determination is whether the Defendant/ Applicant has made out a case of amendment of its defence and counterclaim.
15. The general power to amend pleadings is guided by Section 100 of the Civil Procedure Act. Parties to a suit have a right to amend their pleadings at any stage of the proceedings, albeit that right is not absolute, for it is dependent upon the discretion of the Court. However, this discretion should be exercised judiciously and in line with criteria set out under Order 8 Rule 3 of the Civil Procedure Rules.
Order 8 rule 5 of the Civil Procedure Rules provides as follows:
“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 documents to be amended in such manner as it directs and on such terms as to costs or otherwise as are just”
16. The Court of Appeal in the case of Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] KECA 367 (KLR) dealt with the issues above and stated that:
“A party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the amendment can be allowed without injustice to the other side.”
17. In the case of Abdul Wahid Al Abubakar v Osman Abubakar t/a Osman Woodworks & 2 others [2015] KEELC 74 (KLR) the Court held that:
“The Defendant now wants to introduce a counterclaim, which is a cross suit after the Plaintiff has already closed his case. Indeed, the claim by the 3rd Defendant, who has also testified, is a new cause of action which was never raised in the Defence. Allowing the amendment at this stage will be prejudicial to the Plaintiff because what is being sought to be introduced is a new cause of action, which has been brought after the Plaintiff has testified”.
18. This instant case was filed on 24.3.2017, and the Defendant was fully aware of the defence that would be raised against the Plaintiffs’ claim. It is also on record that Plaintiffs filed a re-amended plaint on 15.7.2022, and the Defendant also filed their amended defence on 19.9.2022.
19. The Defendant filed this application on 30.4.2024 but failed to prosecute it for over two years. During that period, the suit proceeded to a hearing with the Defendant’s full participation. The Plaintiff called all but one of its witnesses without any effort by the Defendant to have the application heard. It is only after the Plaintiffs have substantially proceeded with their case that the Defendant has sought to revive the dormant application.
20. If the Defendant really wanted to pursue his application to amend their defence and introduce a counterclaim, he should have done so before the start of the hearing of the Plaintiffs’ case. Reviving the instant application at this late stage seems like an afterthought to scuttle the hearing of the case.
21. The amendments sought to be introduced are new causes of action, which will cause prejudice to the Plaintiffs and will have the effect of filing fresh pleadings to respond to the amendments.
22. The Defendant has not offered any explanation for the prolonged delay. It is a settled principle that where a party seeks the Court’s discretionary relief after an inordinate delay, such delay must be satisfactorily explained. An unexplained delay disentitles an Applicant to the favourable exercise of the Court’s discretion.
23. Further, the Defendant’s conduct demonstrates acquiescence in the proceedings as constituted. Having elected to proceed with the hearing without pursuing the application, the Defendant cannot now seek to alter the pleadings at such an advanced stage without demonstrating exceptional circumstances.
24. In the case of Athumani & another (Suing for and on Behalf of the Mwanyundo Clan) -v- M/S Karsan Ramji & Sons Ltd & 6 others [2023] KEELC 21749 (KLR) the Court stated that:
“It should be noted that this case was filed in 2018 and the Defendant was aware of the line of defence that it would mount against the Plaintiff’s claim. It is also on record that the 1st Defendant filed a Notice of Preliminary Objection dated 28th July 2021, which was heard and determined vide a ruling dated 16th February 2022, whereby the Preliminary Objection was dismissed. If the 1st Defendant really wanted to pursue the amendments, then it should have done so earlier, before the start of the hearing of the case. The application seems like an afterthought to scuttle the hearing of the case. Moreover, the amendments sought to be introduced are new causes of action, which will cause prejudice and will have the effect of filing fresh pleadings to respond to the amendments.”
25. This Honourable Court is also guided by the overriding objective under Sections 1A and 1B of the Civil Procedure Act, which requires Courts to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes. Granting leave in the present circumstances would undermine these objectives by disrupting proceedings that are nearing completion and rewarding the Defendant’s indolence.
26. In the case of Harrison C. Kariuki v Blue Shield Insurance Co. Ltd. [2006] KEHC 3291 (KLR) in the case Waweru J. in refusing to grant the application, inter alia stated:
“…This is not merely a matter of time and effort wasted. This is a case being pleaded afresh by one party after taking advantage of admission made by the other party towards expeditious disposal of the suit. Yes, a great deal of time and effort will have been wasted. But that is not all. There is also a heavy element of vexation that should not be permitted. Having considered all matters placed before me, in exercise of my discretion I will refuse the application…”.
27. The upshot is that I have considered the Application dated 30.4.2024, the responses, together with the submissions and I find that the Application lacks merit and is therefore dismissed. The parties herein being family members, I make no order as to costs. Each party is to bear its own costs.
Ruling dated, signed and delivered in open Court on this 13th day of July 2026.
C. MUGAMBI
JUDGE
13TH JULY 2026
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