Background
This matter came up on 28th April 2026 for pre-trial directions. Counsel for the Plaintiff raised a preliminary issue regarding the Amended Statement of Defence dated 22nd April 2026 filed by the 1st Defendant. The Plaintiff urged the Court to strike out the said pleading on the ground that it was filed without leave of the Court.
The Plaintiff’s Counsel submitted that the 1st Defendant had previously been granted leave to amend its defence on 6th May 2024 within fourteen (14) days, pursuant to which an amended defence was filed on 30th May 2024. It was argued that the subsequent amendment in April 2026 was filed without leave and was intended to delay the hearing of the matter.
Counsel for the 2nd Defendant associated himself with the Plaintiff’s submissions and added that he had not been served with the impugned amended defence.
The 1st Defendant opposed the application, admitting that the further amended defence was filed without leave but urged the Court to exercise its discretion and deem it as properly filed, arguing that courts should lean towards substantive justice.
Issues for Determination
The sole issue for determination is;
a) Whether the Amended Statement of Defence dated 22nd April 2026 should be struck out for being filed without leave.
ANALYSIS
The law governing amendment of pleadings is found under Order 8 of the Civil Procedure Rules, 2010. While parties are allowed to amend pleadings freely before close of pleadings, any subsequent amendment requires leave of the Court.
It is not disputed that:
i) The 1st Defendant was granted leave on 6th May 2024 to amend its defence within fourteen (14) days;
ii) The 1st Defendant complied (albeit late) by filing an amended defence on 30th May 2024;
iii) The impugned further amended defence dated 22nd April 2026 was filed without seeking or obtaining leave of the Court.
The filing of pleadings without leave where such leave is required renders the pleading procedurally irregular.
However, the Court must also consider its discretionary powers under Order 8 Rule 5(1) of the Civil Procedure Rules, which allows amendment at any stage of proceedings and Sections 1A, 1B, and 3A of the Civil Procedure Act, which enshrine the overriding objective to facilitate the just, expeditious, proportionate, and affordable resolution of disputes.
The guiding principle is that amendments should be freely allowed unless they occasion prejudice that cannot be compensated by costs, are brought in bad faith or fundamentally alter the character of the suit.
In the present case, the 1st Defendant did not seek leave before filing the further amended defence. That omission is not a mere technicality; it is a procedural lapse. However, striking out pleadings is a draconian measure that should be exercised sparingly.
This Court also notes that the matter is yet to proceed to hearing and no demonstrable prejudice has been shown by the Plaintiff that cannot be remedied by costs. The Plaintiff will also have an opportunity to respond to the amended defence if deemed properly filed.
Having said that, this court notes that the conduct of the 1st Defendant reflects disregard for procedural rules and timelines, which the Court cannot condone.
Determination
In balancing procedural compliance with substantive justice, this Court makes the following orders:
1. The Amended Statement of Defence dated 22nd April 2026 is irregular for having been filed without leave of the Court.
2. However, in exercise of this Court’s discretion, the said Amended Defence is hereby deemed as duly filed and served, subject to payment of costs.
3. The 1st Defendant shall pay thrown-away costs to the Plaintiff assessed at Kenya Shillings twenty thousand (Kshs. 20,000/=) within fourteen (14) days from the date hereof.
4. The Plaintiff is granted leave to file a Reply to the Further Amended Defence, if necessary, within seven (7) days from the date hereof.
5. The 1st Defendant shall ensure proper service of the Amended Defence upon the 2nd Defendant within two (2) days from the date hereof.
6. The matter shall thereafter be fixed for pre-trial directions and hearing on priority basis.
DATED, SIGNED AND DELIVERED AT EMBU THIS 04TH DAY OF MAY, 2026.
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HON. E.C CHERONO
ENVIRONMENT AND LAND COURT JUDGE, EMBU
In the presence of;
1. Mr. Magee appearing alongside Mr. Abubbakar for the plaintiff
2. Mr. Morris Njage for the 1st Defendant
3. Mr. Kiongo for the 2nd Defendant
4. Diana Kemboi C/A
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