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ELCPartially AllowedMombasa ELC Case No. 137 of 2017 (now ELCLC No. 4 of 2024)

Rahimkhan & another v County Government of Kwale & 5 others (Environment & Land Case 4 of 2024) [2025] KEELC 500 (KLR)

Environment and Land Court
13 February 2025
4,748 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed Kwale County to amend its land counterclaim but postponed consolidating related land suits until all affected parties are joined.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kwale (A.E Dena, J) determined an application dated 6th May 2024 by the 1st and 6th Defendants, the County Government of Kwale and its County Executive Committee Member for Lands, seeking leave to further amend their counterclaim (originally struck out by Munyao J on 12/02/2020 and reinstated by the Court of Appeal on 17/03/2023) and to consolidate the suit with Kwale ELC Case No. 141 of 2021 (Juma Kanga & 299 Others v Abdulkadir Rahimkhan & 9 Others). The court noted multiple pending suits concerning LR No. 4659 (Original No. 3855/19). The Plaintiffs in Kwale ELC Case No. E004 of 2022 raised a preliminary objection arguing the proposed counterclaim offended Order 7 Rules 8, 11 and 12 and Order 8 Rule 5 of the Civil Procedure Rules and Article 50(1) of the Constitution, and that no counterclaim existed to amend. The court rejected the objection, finding an Amended Defence and Counterclaim filed on 19/06/2017 existed and was never contested, and that the draft amendments were clear and infused life into the counterclaim. The objectors' concerns were real but remediable by further amendment. On consolidation, although the threshold in Nyati Security Guards was met, the court deferred consolidation to a case management conference under Order 11 because other related suits were pending and amendments accommodating affected parties should come first. Leave to amend was granted, with service within 14 days, costs in the cause, and mention on 19/02/2025.

Questions the Court framed

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

  1. 1.Whether the application dated 6th May 2024 seeking leave to amend the counterclaim and consolidation is merited
  2. 2.Whether the proposed amendments offend the provisions of Order 7 Rule 8, 11 and 12, Order 8 Rule 5 of the Civil Procedure Rules and Article 50(1) of the Constitution
  3. 3.Whether the Plaintiffs in Kwale ELC Case No. E004 of 2022 would be prejudiced if leave is granted
  4. 4.Whether the suit should be consolidated with Kwale ELC Court Case No. 141 of 2021

Key legal issues

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01

Whether leave to further amend the counterclaim should be granted

Holding

Leave granted, with liberty to amend to include any other affected parties; the amendments infused life into the counterclaim and no prejudice was shown

Reasoning

The court reviewed the draft Further Amended Defence and Counterclaim against the pleading of 16/06/2017 and found the proposed amendments clearly brought out the facts surrounding the lease renewal, infusing life into the counterclaim. Following Central Kenya Ltd v Trust Bank Ltd, amendments are freely allowed unless prejudice incapable of compensation in costs. The objectors' concerns were addressable by further amendment under Order 1 Rule 10(2) and Order 8 Rule 4.

p. 8
02

Whether the objecting Plaintiffs in ELC No. E004/E04 of 2022 have standing to oppose despite not being parties to the suit

Holding

Their concerns were real and well founded, but remediable by further amendment rather than refusal of leave

Reasoning

Although not parties to the suit in which the amendments are proposed, these Plaintiffs allege they facilitated the lease renewal and are condemned by the counterclaim as irregularly obtaining it. The court held their apprehensions were well founded and real, and they are entitled to defend their position, but the remedy lies in amending the draft counterclaim to name them, not in defeating the application.

p. 7
03

Whether the proposed amendments offended Order 7 Rule 8, 11 and 12, Order 8 Rule 5 and Article 50(1)

Holding

No offence established; the proposed title and parties were clearly indicated and the pleading was a mere draft amenable to further amendment

Reasoning

The court compared the draft Further Amended Defence and Counterclaim with the earlier pleading and found the title and parties clearly marked, new paragraphs underlined, and abandoned paragraphs deleted. Nothing of concern emerged to sustain the objection. Further, the objection that no counterclaim existed was rejected because an Amended Defence and Counterclaim filed 19/06/2017 existed and was never contested.

p. 7
04

Whether the two suits should be consolidated

Holding

The threshold for consolidation was met, but consolidation deferred to a case management conference where all related suits can be considered together

Reasoning

Applying the principles in Nyati Security Guards as set out in Joseph Okoyo, the court found the two suits relate to the same subject property, the County Government is a party to both, and consolidation would save judicial time. However, since other suits concerning LR 4659 are pending, the court directed that consolidation be considered wholesomely under Order 11 Rule 3(1)(h) at a further case management forum after the necessary amendments.

p. 8

Legal principles established

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  • Amendments to pleadings are to be freely allowed unless the opposite side would be prejudiced or suffer injustice which cannot be compensated in costs
  • Consolidation may be ordered where there is a common question of law or fact, or where rights or relief claimed arise out of the same transaction, or where it is otherwise desirable

Court orders

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  1. 1.The applicant is granted leave to further amend the Counterclaim so as to take into account any other relevant parties that may ultimately be affected by the Orders sought in the Amended Counterclaim
  2. 2.The amendments shall be effected and served upon the affected parties within 14 days of the date of the ruling
  3. 3.The consolidation of the suits shall be further considered as part of the case management conference under the provisions of Order 11
  4. 4.Costs shall be in the cause
  5. 5.The suits shall be mentioned on 19/02/2025

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 1 Rule 10(2) and Order 8 Rule 3 of the Civil Procedure Rules; Article 159 of the Constitution (inherent discretion to render substantive justice)

Relief refused

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Immediate consolidation of this suit with Kwale ELC Court Case No. 141 of 2021 and hearing together

Other related suits touch on the same subject matter and appropriate amendments to accommodate affected parties should first be undertaken; consolidation to be considered wholesomely at a case management forum under Order 11

p. 9

Costs

Costs shall be in the cause

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.

the policy of the law is that amendments to pleadings are to be freely allowed unless by allowing them the opposite side would be prejudiced or sufier injustice which cannot properly be compensated for in costs.
p. 6Principle on amendments to pleadings
I think to find that there is no counterclaim to amend will be misleading.
p. 6Existence of a counterclaim to amend
Having understood the gravamen of the amendments I would agree that the same has brought out the issues in controversy which will enable the court to render justice from an informed point of view. Infact they have infused life into the counterclaim.
p. 8Effect of proposed amendments
That the applicant is hereby granted leave to further amend the Counterclaim accordingly so as to take into account any other relevant parties that may ultimately be afiected by the Orders sought in the Amended Counterclaim.
p. 9Final orders - leave to amend
That the consolidation of the suits shall further be considered as part of the case Management conference under the provisions of Order 11
p. 9Final orders - consolidation deferred

Issues in the judgment

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minor

The ruling alternately refers to the objecting Plaintiffs' suit as 'Kwale ELC Case No. E004 of 2022' and 'ELC No. E04 of 2024', creating uncertainty over the correct case number

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rahimkhan & another v County Government of Kwale & 5 others (Environment & Land Case 4 of 2024) [2025] KEELC 500 (KLR)", Case Analysis (2025). Mombasa ELC Case No. 137 of 2017 (now ELCLC No. 4 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/500/eng@2025-02-13

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