Hasgeman Company Limited & 2 others v Patel & 5 others (Environment and Land Case 131 of 2015 & 2011 of 2016 (Consolidated)) [2025] KEELC 4040 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a late amendment to a defence and counter-claim, confirming delay alone doesn't bar amendments if the other side can be compensated by costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st Defendant should be granted leave to amend his Defence and Counter-claim following the setting aside of the proceedings and Judgment dated 27/02/2023
- 2.Whether the amendment would occasion injustice or prejudice to the Plaintiff not compensable by costs
- 3.Whether the Application, made after judgment was set aside, amounts to an abuse of process or a second bite at the cherry
Key legal issues
#Discretion to amend pleadings under Order 8 Rule 3
Leave to amend was granted because the amended Defence and Counter-claim would assist the Court determine the real question in controversy and any prejudice to the Plaintiff is compensable by costs.
The Court reaffirmed that Order 8 Rule 3 confers a wide and unfettered discretion to allow amendment at any stage, exercised judicially under the Central Kenya Ltd v Trust Bank principles: amendments necessary to determine the real question in controversy should be allowed absent undue delay, new or inconsistent causes of action, or injustice not compensable by costs. The Court found the draft amendment would aid determination of the dispute involving two titles to the suit property and that no non-compensable prejudice was demonstrated.
Effect of delay in seeking amendment
Delay alone does not bar an amendment; even a late amendment should be allowed if made in good faith and the other side can be compensated by costs.
Relying on Ochieng & Ors v First National Bank of Chicago, the Court held that the purpose of allowing amendments is to reach the true substantive merits of the case, so even where there is delay the amendment can still be allowed. The Plaintiff's argument that the application came after judgment was therefore not a bar, particularly since the prior judgment had been set aside and the consolidated suits were to be heard afresh.
Legal principles established
#- The power to allow amendments is intended to enable the Court determine the true, substantive merits of the case, and even a late amendment may be allowed if made in good faith and the other side can be compensated by costs.
- The discretion to allow amendment of pleadings is wide and unfettered but must be exercised judicially upon guiding principles.
Court orders
#- 1.The 1st Defendant is granted leave to amend its Defence and Counter-claim in terms of the draft annexed to the Application dated 15/05/2024, and to file the same within 7 days after payment of the requisite fees
- 2.The Defence and Counter-claim together with Bundle of Documents and Witness Statements be served within 14 days of the date of filing
- 3.The Plaintiff and 2nd and 3rd Defendants are granted leave to file a Reply to the Amended Defence and Counter-claim within 14 days of receipt of service
- 4.The 1st Defendant shall meet the costs of the Application and the Defence and Counter-claim
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 8 Rule 3 of the Civil Procedure Rules (discretion to allow amendment of pleadings)
- Consolidated with
- ELC No. 1201 of 2016
Quotable passages
#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 Orders of the Court are as follows:1. The 1st Defendant is hereby granted leave to amend its Defence and Counter-claim in terms of the draft annexed to the Application dated 15/05/2024, and file the same within 7 days of the date hereof after payment of the requisite fees.
The 1st Defendant shall meet the costs of this Application and the Defence and Counter Claim.
It follows therefore that the basis for allowing amendments is to enable the Court determine the true and substantive merits of the case.
I also do not see any prejudice to be suffered by the Plaintiff that cannot be compensated by an award of costs.
Issues in the judgment
#Role designation inconsistency: the order refers to '2nd and 3rd Respondents' although the parties are described as Defendants throughout
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hasgeman Company Limited & 2 others v Patel & 5 others (Environment and Land Case 131 of 2015 & 2011 of 2016 (Consolidated)) [2025] KEELC 4040 (KLR)", Case Analysis (2025). ELC No. 131 of 2015 (Consolidated with ELC No. 1201 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4040/eng@2025-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.