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Court of AppealAllowedCivil Appeal from the ruling of the ELC at Narok in ELC No. 10 of 2017 (appeal memorandum dated 4th November 2019; appeal number not stated in the extract)

Sadera & 2 others v Kerema & 7 others (Civil Appeal 89 of 2019) [2025] KECA 458 (KLR)

Court of Appeal of Kenya
7 March 2025
Mohamed Abdulahi WarsameM. WarsameJMJ. MativoMGM. Gachoka
6,280 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that parties can amend their court documents or add parties at any stage of a land case before judgment.

What this practically means

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Executive summary

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The appellants' suit, begun in 2000 in the High Court at Nairobi and transferred through the ELC at Nakuru to the ELC at Narok, concerns sub-division and allocation of land in Olopito Group Ranch. After PW1 testified, the appellants applied on 3rd April 2018 for leave to amend their plaint and to join Harun Lempaka as 5th plaintiff. Kullow, J. dismissed the application with costs on 31st October 2018, holding that the amendment would be prejudicial because the suit had already proceeded and would have to start afresh with new facts and issues, and that the proposed plaintiff had not demonstrated a stake in the suit or sworn an affidavit. The Court of Appeal framed two issues: whether the judge erred in refusing the amendment and in rejecting the joinder. On the first, the Court held that amendments may be sought at any stage before final judgment; only one witness had testified; prejudice can be cured by costs, amending the defence, or recalling witnesses; and comparing the pleadings, the proposed additions concerned parcels within the same group ranch arising from substantially the same facts, so no new cause of action was introduced. On the second, the Court held that the judge wrongly applied the constitutional-petition 'identifiable stake' test instead of the Order 1 Rule 10 tests of necessary or proper party. Applying the settled principles in United India Insurance and Eastern Bakery, the Court found the discretion was palpably wrongly exercised, allowed the appeal, reversed the ruling, allowed the application, directed that costs of the appeal abide the outcome of the suit, and ordered the retrial before any other ELC judge except Kullow, J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge erred in law in declining the plea for amendment of the appellants' plaint
  2. 2.Whether the learned judge erred in law in rejecting the prayer to enjoin Harun Lempaka as the 5th plaintiff in the suit before the trial court
  3. 3.Whether there is sufficient basis for the Court to interfere with the learned judge's exercise of discretion

Key legal issues

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01

Whether the judge erred in refusing the amendment of the plaint on the ground of prejudice and that the case would start afresh

Holding

Yes. Amendments can be brought at any stage before final judgment; only one witness had testified; prejudice can be met by costs, amending the defence, or recalling witnesses. The amendments did not introduce a new cause of action and the judge's finding was premised on an erroneous assumption.

Reasoning

Order 8 rules 3(1) and 5(1) permit amendment at any stage for determining the real question in controversy. The judge failed to consider the meaning of 'at any stage of the proceedings' and whether the respondents could be compensated by costs. Comparing the pleadings, the additions concerned parcels within the same group ranch and arose from substantially the same facts, so no new cause of action was introduced; the truth of the new averments is a matter of evidence.

p. 9
02

Whether the judge erred in rejecting the joinder of Harun Lempaka as 5th plaintiff

Holding

Yes. The judge applied the constitutional-petition test of an 'identifiable stake' instead of the Order 1 Rule 10 tests of necessary or proper party in civil proceedings.

Reasoning

The joinder of parties in civil suits is governed by Order 1 Rule 10(2), which permits adding any person whose presence is necessary to effectually and completely adjudicate the suit. The learned judge failed to consider whether the intended plaintiff was a necessary or proper party, misapprehending the nature of the application and the applicable law, and therefore improperly exercised his discretion in rejecting the joinder prayer.

p. 10
03

Whether the Court of Appeal should interfere with the trial judge's discretion

Holding

Yes. Applying the United India Insurance test, the judge misconstrued the applications, misapplied the law, and failed to exercise his discretion judiciously, justifying interference.

Reasoning

The court recited Madan JA's five grounds for interfering with discretionary decisions and found the trial judge misdirected himself in law on both amendment and joinder. Having found the judge misconstrued the nature of the applications and failed to apply the settled tests, the Court held this a proper case for interference and reversed the ruling.

p. 11

Legal principles established

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  • An appellate court will not interfere with a trial court's discretionary decision unless the discretion was exercised arbitrarily, capriciously or perversely, the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision is plainly wrong.
  • Amendment of pleadings may be sought and allowed at any stage of the proceedings before final judgment, including after commencement of trial, provided the amendment is necessary to determine the real question in controversy and any prejudice to the other party can be compensated by costs.
  • An amendment that adds or substitutes a cause of action arising out of the same or substantially the same facts already pleaded shall be allowed; whether the amended facts are true is a matter for evidence at trial, not a ground for refusing the amendment.
  • In civil proceedings governed by the Civil Procedure Rules, joinder of a party is tested under Order 1 Rule 10 - whether the person is a necessary or proper party whose presence is necessary to enable the court effectually and completely to adjudicate - and the test of an 'identifiable stake' applies only to interested parties in constitutional petitions.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling dated 31st October 2018 is reversed
  3. 3.The appellants' application dated 3rd April 2018 is allowed
  4. 4.The costs of this appeal shall abide the outcome of the suit
  5. 5.The suit shall be heard before any other judge of the Environment and Land Court except Kullow, J.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
JM
majority
MG
majority
On appeal from
Environment and Land Court, Narok (formerly High Court Nairobi Civil Suit No. 246 of 2000; ELC Nakuru No. 80 of 2009)
ELC No. 10 of 2017
Jurisdiction invoked
First appellate jurisdiction under Article 164 of the Constitution (appeal from the Environment and Land Court); provision not expressly cited in the extract

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, we allow this appeal and reverse the ruling dated 31st October 2018 and allow the appellants' application dated 3rd April 2018. We order that the costs of this appeal abide the outcome of the suit. The appeal shall be heard before any other judge of the Environment and Land Court except Kullow, J.
p. 11Final orders - appeal allowed, ruling reversed, retrial before another judge
Ordinarily, an appellate court will not interfere with the exercise of discretion of the court of the first instance and substitute its own discretion, except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely
p. 4Standard for appellate interference with discretion
the basic object of the above rule is that courts should try the merits of the cases that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other party
p. 5Purpose of amendment of pleadings
A 'Necessary Party' is one whose presence is indispensable or against whom relief is sought and without whom no effective order can be passed. A 'Proper Party' is one in whose absence an effective order can be passed but whose presence is necessary for complete and final decision on the questions involved in proceedings.
p. 10Definitions of necessary and proper parties
all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind that must succeed at the end of the trial.
p. 10Threshold for joinder
Whether or not the respondents disobeyed conservatory orders in purporting to sub-divide the suit property is a matter for determination during the hearing of the main suit.
p. 4Limits of interlocutory appellate review

Issues in the judgment

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minor

The full names of the parties are not stated in the coram or title of the judgment extract; only individual names (e.g. Johnson Sandera, Pasaye Ole Kerem, Harun/Harum Lempaka) appear in the narrative, and the appeal number itself is not stated.

minor

The proposed fifth plaintiff's name appears in two spellings in the judgment.

minor

The quoted block of Order 8 Rule 5(1) is rendered with typographical errors in the judgment text (the numbering and bracketing are garbled).

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sadera & 2 others v Kerema & 7 others (Civil Appeal 89 of 2019) [2025] KECA 458 (KLR)", Case Analysis (2025). Civil Appeal from the ruling of the ELC at Narok in ELC No. 10 of 2017 (appeal memorandum dated 4th November 2019; appeal number not stated in the extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/458/eng@2025-03-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.