REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC PETITION NO. 15 OF 2019
THANGE RIVER BASIN RESIDENTS' ASSOCIATION
(Suing on behalf of the Residents of River Thange Basin,
Kibwezi Makueni County) & 44 OTHERS ………..................PETITIONERS
-VERSUS-
KENYA PIPELINE COMPANY LIMITED ……………….1 ST RESPONDENT
NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY (NEMA)……………………………………...2 ND RESPONDENT
THE CABINET SECRETARY,
MINISTRY OF ENVIRONMENT ………………………....3 RD RESPONDENT
THE CABINET SECRETARY,
MINISTRY OF HEALTH …………………………………4 TH RESPONDENT
THE CABINET SECRETARY,
MINISTRY OF ENERGY AND PETROLEUM …………..5 TH RESPONDENT
THE HON. ATTORNEY GENERAL ……………………...6 TH RESPONDENT
RULING
1. Before the court for determination is the Notice of Motion dated 19 th September, 2025 filed under the provisions of Article 159 (2) of the Constitution as well as Rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
2. The Petitioners seek issuance of the following orders: -
a) [ SPENT ]
b) THAT leave be and is hereby granted to the Petitioners/Applicants to further amend their petition dated 20 th May, 2025.
c) THAT the costs of the application be provided for.
3. The application is based on the grounds appearing on its face together with the supporting affidavit of Philip Mbulu Somba Advocate sworn on even date. The deponent averred that while the present petition was pending in court, a decision was delivered in Makueni ELC Petition No. 9 of 2019; Muindi Kimeu & 3074 others versus Kenya Pipeline Company Limited & another . That the said decision rendered some aspects of the Petitioners/Applicants’ petition herein res judicata.
4. The deponent contended that the Applicants are desirous of joining more Petitioners to the Petition following conclusion of medical tests and compilation of medical reports for over one thousand four hundred residents of Thange. That the amendment sought to be done to the petition will ensure that the newly tested residents who were affected by the oil spill of 2015 are brought on board in addition to striking out those prayers which have been rendered moot by the earlier decision of the court.
5. Opposing the application, the 1 st Respondent filed a replying affidavit sworn on its behalf by Elizabeth Rop, the Senior Legal Officer on 27 th October, 2025. She averred that the present application and the further amended petition are res judicata as it is seeking similar reliefs as per the MAKUENI ELC PETITION No. 9 of 2019. That apart from the parties and a few amendments, the pleadings are similar in nature and subject matter. The deponent contended that it would be unjust to the Applicant to litigate an already decided matter.
6. The application was also opposed by the 3 rd – 6 th Respondents vide grounds of opposition dated 24 th October, 2025. It was contended that the intended amendments that have been sought are substantial in nature and would change the character of the case into a substantially different action. It was further contended that the intended amendments amount to evidence and arguments rather than concise statements of fact. The Respondents characterized the amendments sought as a patchwork that seeks to change the cause of action which it was contended was res judicata in view of the judgment delivered in MAKUENI ELC PETITION NO. 9 OF 2019.
7. The application was also opposed vide grounds of opposition dated 13 th November, 2025 by Muriithi S. Kiragu & Co. Advocates on behalf of withdrawing petitioners. The application for withdrawal dated 21 st March, 2025 was dismissed vide the ruling delivered on 12 th March, 2026 which in effect renders the grounds of opposition and submissions filed moot for all purposes.
8. The application was canvassed by way of written submissions. In the Applicants’ submissions dated 25 th November, 2025 Counsel submitted that the application was prompted by delivery of the judgment in MAKUENI ELC PETITION NO. 9 OF 2019 on 11 th July, 2025. It was further submitted that the timing of the application was fully justified in view of the emergence of new information and the need to avoid duplication of issues that had already been adjudicated.
9. Counsel contended that the amendments will not introduce a new and inconsistent cause of action. Instead, it was stated that the amendments will clarify and streamline the petition by removing issues that have been conclusively determined and align the pleadings with the legal findings in the earlier judgment.
10. Counsel argued that the proposed amendments will not prejudice the Respondents as they will retain the full opportunity to respond to the amended petition. It was urged that the application ought to be allowed as prayed.
11. In the 3 rd – 6 th Respondents’ submissions dated 8 th January, 2026, State Counsel submitted that the intended amendments seek to introduce a new cause of action to defeat the plea of res judicata directed at the instant suit. That the Petitioners concede at paragraphs 7 and 8 of the supporting affidavit that the purpose of the amendments is to allow the Petitioners to amend aspects of their claim which were rendered res judicata on account of the decision of this court in MAKUENI ELC PETITION No. 9 of 2019.
12. State Counsel pointed out that the identification details for the 1,400 new residents of Thange River who have sought to be introduced to the Petition vide the amendments have not been provided. It was submitted that the application is speculative, baseless and patently without merit. State Counsel urged the court to decline the invitation by the Applicants as the amendments seek to substantially alter the character of the original petition in order to evade the rules of res judicata.
13. The only issue for determination herein is whether the Petitioners have demonstrated merit in their application for leave to amend their pleadings.
14. Rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 is the governing law guiding the amendment of constitutional petitions. It provides as follows: -
18. A party that wishes to amend its pleadings at any stage of the proceedings may do so with the leave of the Court.
15. The principles that govern the exercise of such discretion were elucidated by the Court of Appeal in Central Kenya Ltd v Trust Bank Ltd [2000] 2 EA 365 (CAK) where it was held as follows: -
“The amendment of pleadings and joinder of parties was aimed at allowing a litigant to plead the whole of the claim he was entitled to make in respect of his cause of action. A party would be allowed to make such amendments of pleadings as were necessary for determining the real issue in controversy or avoiding a multiplicity of suits provided (i) there had been no undue delay, (ii) no new or inconsistent cause of action was introduced, (iii) no vested interest or accrued legal right was affected, and (iv) the amendment could be allowed without injustice to the other side. Accordingly, all amendments should be freely allowed at any stage of the proceedings, provided that the amendment or joinder did not result in prejudice or injustice to the other party that could not be properly compensated for in costs; Beoco Ltd v Alfa Laval Co Ltd [1994] 4 All ER 464 adopted.”
16. In the case of Institute For Social Accountability & Another v Parliament Of Kenya & 3 others [2014] eKLR , the Court aptly held as follows: -
“17. The issue of amendment of pleadings is not novel and has been the subject of numerous court decisions, the common denominator being that as a general principle, courts will normally allow amendment of pleadings at any stage of the proceedings if it can be done without occasioning injustice or prejudice to the other party and which prejudice can be compensated by an award of costs. See generally Eastern Bakery v Castelino (1958) EA 461; Ochieng and Others v First National Bank Of Chicago CA Civil Appeal Number 149 of 1991, Kenyatta National Hospital v Kenya Commercial Bank Ltd & Another [2003] 2 EA.
18. 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.
19. 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.”
17. The Petitioners filed a further amended Petition on 20 th May, 2025 pursuant to leave of court issued on 30 th October, 2023. The proposed amendments herein are demonstrated in the attached draft marked Exhibit “PMS-3”. It was explained at paragraphs 5 and 6 of the supporting affidavit that the amendments sought are in the nature of introducing more Petitioners following the conclusion of medical tests which show the nature and extent of injuries that informs the claim for compensation against the Respondents.
18. In particular, the amendment at paragraph 65 (iii) seeks to adjust the number of affected Petitioners upwards from 396 to 2,267. Again, as shown at paragraphs 60 to 97 of the annexed draft, the Petitioners seek to adjust the proportions of their claims (quantum) for general damages under various heads on the nature of loss. For example, loss of domestic water has been adjusted from Kshs.5,058,900 to Kshs.28,960,925 while general damages for pain, suffering and loss of amenities has been adjusted from Kshs.237,600,000 to Kshs.1,360,200,000/=.
19. On the prayers sought in the annexed draft, the prayer for an environmental restoration order under paragraph (e) has been abandoned. It is on the basis of the decision of this court dated 11 th July, 2025 in MAKUENI ELC PETITION No. 9 of 2019; Muindi Kimeu & 3074 others v Kenya Pipeline Company Limited & another which granted an environmental restoration order under Order No. (d) of the decree that the Petitioners herein have abandoned their claim the same being redundant.
20. Opposing the application, the Respondents claim that the amendments sought are res judicata. It was also claimed that the actual identities of the affected Petitioners had not been disclosed. It is the finding of this court that the identities of the affected Petitioners will be determined in due course at the hearing of the petition as a matter of evidence when medical reports and identification documents will be examined.
21. From the application, it is apparent that the same was made on 19 th September, 2025 approximately two months after the delivery of the judgment in MAKUENI ELC PETITION No. 9 of 2019. The delay thereof is not unreasonable. Secondly, after examining the nature of proposed amendments, it is clear that no new cause of action is being introduced. The amendments do not change the character of the claim. Instead, the amendments sought will eliminate any uncertainty on the proportion of compensation, introduce the actual number of affected individuals in addition to removing any redundant claim.
22. This will no doubt aid the course of justice by assisting the Court to determine who suffered a violation of the fundamental rights and to what extent. In the end, the real matters in controversy will be established if the amendments sought are allowed. The Respondents have not demonstrated any mischief or prejudice that will be occasioned by the proposed amendments. Each party will have adequate opportunity to prove and rebut the claims in the Petition and the Respondents have an opportunity to file a necessary reply to counter the amendments.
23. In view of the foregoing, the application is hereby allowed in terms of Prayer (b) and (c). Amendments to be made within 14 days but in view of the application made by Mr. Maanzo and Mr. Mbulo, the amendments shall remain on hold pending the hearing and determination of the application dated 1 st April, 2026 and the reference dated 16 th April, 2025.
It is so ordered.
................................................
HON. E. O. OBAGA, FCIArb
JUDGE
JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 30 TH DAY OF JULY, 2026.
IN THE PRESENCE OF:
Mr. Mureithi for some Petitioners
Mr. Mbulu and Mr. Maanzo for Petitioners
Mr. Mugun for 1 st Respondent.
Mr. Wabwire for Mr. Odongo for 3 rd to 5 th Respondents.
Mr. Kuria for Mr. Ngala for 2 nd Respondent
ELC PET NO. 15 OF 2019 8 | Page
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC PETITION NO. 15 OF 2019
THANGE RIVER BASIN RESIDENTS' ASSOCIATION
(Suing on behalf of the Residents of River Thange Basin,
Kibwezi Makueni County) & 44 OTHERS ………..................PETITIONERS
-VERSUS-
KENYA PIPELINE COMPANY LIMITED ……………….1 ST RESPONDENT
NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY (NEMA)……………………………………...2 ND RESPONDENT
THE CABINET SECRETARY,
MINISTRY OF ENVIRONMENT ………………………....3 RD RESPONDENT
THE CABINET SECRETARY,
MINISTRY OF HEALTH …………………………………4 TH RESPONDENT
THE CABINET SECRETARY,
MINISTRY OF ENERGY AND PETROLEUM …………..5 TH RESPONDENT
THE HON. ATTORNEY GENERAL ……………………...6 TH RESPONDENT
RULING
1. Before the court for determination is the Notice of Motion dated 19 th September, 2025 filed under the provisions of Article 159 (2) of the Constitution as well as Rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.
2. The Petitioners seek issuance of the following orders: -
a) [ SPENT ]
b) THAT leave be and is hereby granted to the Petitioners/Applicants to further amend their petition dated 20 th May, 2025.
c) THAT the costs of the application be provided for.
3. The application is based on the grounds appearing on its face together with the supporting affidavit of Philip Mbulu Somba Advocate sworn on even date. The deponent averred that while the present petition was pending in court, a decision was delivered in Makueni ELC Petition No. 9 of 2019; Muindi Kimeu & 3074 others versus Kenya Pipeline Company Limited & another . That the said decision rendered some aspects of the Petitioners/Applicants’ petition herein res judicata.
4. The deponent contended that the Applicants are desirous of joining more Petitioners to the Petition following conclusion of medical tests and compilation of medical reports for over one thousand four hundred residents of Thange. That the amendment sought to be done to the petition will ensure that the newly tested residents who were affected by the oil spill of 2015 are brought on board in addition to striking out those prayers which have been rendered moot by the earlier decision of the court.
5. Opposing the application, the 1 st Respondent filed a replying affidavit sworn on its behalf by Elizabeth Rop, the Senior Legal Officer on 27 th October, 2025. She averred that the present application and the further amended petition are res judicata as it is seeking similar reliefs as per the MAKUENI ELC PETITION No. 9 of 2019. That apart from the parties and a few amendments, the pleadings are similar in nature and subject matter. The deponent contended that it would be unjust to the Applicant to litigate an already decided matter.
6. The application was also opposed by the 3 rd – 6 th Respondents vide grounds of opposition dated 24 th October, 2025. It was contended that the intended amendments that have been sought are substantial in nature and would change the character of the case into a substantially different action. It was further contended that the intended amendments amount to evidence and arguments rather than concise statements of fact. The Respondents characterized the amendments sought as a patchwork that seeks to change the cause of action which it was contended was res judicata in view of the judgment delivered in MAKUENI ELC PETITION NO. 9 OF 2019.
7. The application was also opposed vide grounds of opposition dated 13 th November, 2025 by Muriithi S. Kiragu & Co. Advocates on behalf of withdrawing petitioners. The application for withdrawal dated 21 st March, 2025 was dismissed vide the ruling delivered on 12 th March, 2026 which in effect renders the grounds of opposition and submissions filed moot for all purposes.
8. The application was canvassed by way of written submissions. In the Applicants’ submissions dated 25 th November, 2025 Counsel submitted that the application was prompted by delivery of the judgment in MAKUENI ELC PETITION NO. 9 OF 2019 on 11 th July, 2025. It was further submitted that the timing of the application was fully justified in view of the emergence of new information and the need to avoid duplication of issues that had already been adjudicated.
9. Counsel contended that the amendments will not introduce a new and inconsistent cause of action. Instead, it was stated that the amendments will clarify and streamline the petition by removing issues that have been conclusively determined and align the pleadings with the legal findings in the earlier judgment.
10. Counsel argued that the proposed amendments will not prejudice the Respondents as they will retain the full opportunity to respond to the amended petition. It was urged that the application ought to be allowed as prayed.
11. In the 3 rd – 6 th Respondents’ submissions dated 8 th January, 2026, State Counsel submitted that the intended amendments seek to introduce a new cause of action to defeat the plea of res judicata directed at the instant suit. That the Petitioners concede at paragraphs 7 and 8 of the supporting affidavit that the purpose of the amendments is to allow the Petitioners to amend aspects of their claim which were rendered res judicata on account of the decision of this court in MAKUENI ELC PETITION No. 9 of 2019.
12. State Counsel pointed out that the identification details for the 1,400 new residents of Thange River who have sought to be introduced to the Petition vide the amendments have not been provided. It was submitted that the application is speculative, baseless and patently without merit. State Counsel urged the court to decline the invitation by the Applicants as the amendments seek to substantially alter the character of the original petition in order to evade the rules of res judicata.
13. The only issue for determination herein is whether the Petitioners have demonstrated merit in their application for leave to amend their pleadings.
14. Rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 is the governing law guiding the amendment of constitutional petitions. It provides as follows: -
18. A party that wishes to amend its pleadings at any stage of the proceedings may do so with the leave of the Court.
15. The principles that govern the exercise of such discretion were elucidated by the Court of Appeal in Central Kenya Ltd v Trust Bank Ltd [2000] 2 EA 365 (CAK) where it was held as follows: -
“The amendment of pleadings and joinder of parties was aimed at allowing a litigant to plead the whole of the claim he was entitled to make in respect of his cause of action. A party would be allowed to make such amendments of pleadings as were necessary for determining the real issue in controversy or avoiding a multiplicity of suits provided (i) there had been no undue delay, (ii) no new or inconsistent cause of action was introduced, (iii) no vested interest or accrued legal right was affected, and (iv) the amendment could be allowed without injustice to the other side. Accordingly, all amendments should be freely allowed at any stage of the proceedings, provided that the amendment or joinder did not result in prejudice or injustice to the other party that could not be properly compensated for in costs; Beoco Ltd v Alfa Laval Co Ltd [1994] 4 All ER 464 adopted.”
16. In the case of Institute For Social Accountability & Another v Parliament Of Kenya & 3 others [2014] eKLR , the Court aptly held as follows: -
“17. The issue of amendment of pleadings is not novel and has been the subject of numerous court decisions, the common denominator being that as a general principle, courts will normally allow amendment of pleadings at any stage of the proceedings if it can be done without occasioning injustice or prejudice to the other party and which prejudice can be compensated by an award of costs. See generally Eastern Bakery v Castelino (1958) EA 461; Ochieng and Others v First National Bank Of Chicago CA Civil Appeal Number 149 of 1991, Kenyatta National Hospital v Kenya Commercial Bank Ltd & Another [2003] 2 EA.
18. 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.
19. 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.”
17. The Petitioners filed a further amended Petition on 20 th May, 2025 pursuant to leave of court issued on 30 th October, 2023. The proposed amendments herein are demonstrated in the attached draft marked Exhibit “PMS-3”. It was explained at paragraphs 5 and 6 of the supporting affidavit that the amendments sought are in the nature of introducing more Petitioners following the conclusion of medical tests which show the nature and extent of injuries that informs the claim for compensation against the Respondents.
18. In particular, the amendment at paragraph 65 (iii) seeks to adjust the number of affected Petitioners upwards from 396 to 2,267. Again, as shown at paragraphs 60 to 97 of the annexed draft, the Petitioners seek to adjust the proportions of their claims (quantum) for general damages under various heads on the nature of loss. For example, loss of domestic water has been adjusted from Kshs.5,058,900 to Kshs.28,960,925 while general damages for pain, suffering and loss of amenities has been adjusted from Kshs.237,600,000 to Kshs.1,360,200,000/=.
19. On the prayers sought in the annexed draft, the prayer for an environmental restoration order under paragraph (e) has been abandoned. It is on the basis of the decision of this court dated 11 th July, 2025 in MAKUENI ELC PETITION No. 9 of 2019; Muindi Kimeu & 3074 others v Kenya Pipeline Company Limited & another which granted an environmental restoration order under Order No. (d) of the decree that the Petitioners herein have abandoned their claim the same being redundant.
20. Opposing the application, the Respondents claim that the amendments sought are res judicata. It was also claimed that the actual identities of the affected Petitioners had not been disclosed. It is the finding of this court that the identities of the affected Petitioners will be determined in due course at the hearing of the petition as a matter of evidence when medical reports and identification documents will be examined.
21. From the application, it is apparent that the same was made on 19 th September, 2025 approximately two months after the delivery of the judgment in MAKUENI ELC PETITION No. 9 of 2019. The delay thereof is not unreasonable. Secondly, after examining the nature of proposed amendments, it is clear that no new cause of action is being introduced. The amendments do not change the character of the claim. Instead, the amendments sought will eliminate any uncertainty on the proportion of compensation, introduce the actual number of affected individuals in addition to removing any redundant claim.
22. This will no doubt aid the course of justice by assisting the Court to determine who suffered a violation of the fundamental rights and to what extent. In the end, the real matters in controversy will be established if the amendments sought are allowed. The Respondents have not demonstrated any mischief or prejudice that will be occasioned by the proposed amendments. Each party will have adequate opportunity to prove and rebut the claims in the Petition and the Respondents have an opportunity to file a necessary reply to counter the amendments.
23. In view of the foregoing, the application is hereby allowed in terms of Prayer (b) and (c). Amendments to be made within 14 days but in view of the application made by Mr. Maanzo and Mr. Mbulo, the amendments shall remain on hold pending the hearing and determination of the application dated 1 st April, 2026 and the reference dated 16 th April, 2025.
It is so ordered.
................................................
HON. E. O. OBAGA, FCIArb
JUDGE
JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 30 TH DAY OF JULY, 2026.
IN THE PRESENCE OF:
Mr. Mureithi for some Petitioners
Mr. Mbulu and Mr. Maanzo for Petitioners
Mr. Mugun for 1 st Respondent.
Mr. Wabwire for Mr. Odongo for 3 rd to 5 th Respondents.
Mr. Kuria for Mr. Ngala for 2 nd Respondent
ELC PET NO. 15 OF 2019 8 | Page