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ELCAllowedNotice of motion dated 5th February, 2025 (suit filed 11th May, 2009)

Postal Corporation of Kenya v Board of Trustees Teleposta Pension Scheme (Environment and Land Case 96 of 2009) [2025] KEELC 5144 (KLR)

Environment and Land Court
10 July 2025
MCMbogo C.G.
2,332 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 5th February 2025 by which the plaintiff, proprietor of LR 209/13957/1, sought leave to amend its plaint in a suit filed on 11th May 2009 against the defendant, which occupies Posta House. The plaintiff, in a dispute over 68 basement parking bays, sought to add prayers for a refund of sums paid for the bays and for mesne profits, contending these arose from the same facts, would enable correct litigation and avoid multiplicity of suits, and that its delay was due to difficulty retrieving historical records after staff departed. The defendant, through Peter K. Rotich, opposed, arguing the application was a tactical manoeuvre on the eve of hearing after sixteen years, and that the refund and mesne profits claims were statute-barred under Sections 4(1)(a) and 7 of the Limitation of Actions Act, with no application to extend time. Both parties filed written submissions. The court framed a single issue: whether the prayer to amend the plaint was merited. Applying Section 100 of the Civil Procedure Act and Order 8 Rules 3 and 5, and the principles in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited, the court held that although the amendment came late, it arose from the same facts, no prejudice to the defendant was demonstrated, the defendant could amend its defence, the limitation defence could be tested at the substantive hearing, and costs were adequate compensation. The application was allowed: leave to amend was granted, the amended plaint to be deemed filed on payment of fees within 7 days, service to follow, the defendant to file an amended defence within 21 days of service, and costs of Kshs. 150,000/- were awarded to the defendant.

Questions the Court framed

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

  1. 1.Whether the prayer seeking the amendment of the plaint is merited

Key legal issues

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01

Whether leave should be granted to the plaintiff to amend the plaint to add claims for refund of sums paid for parking bays and mesne profits on the eve of the hearing

Holding

The amendment was allowed. Though brought late, it arose out of the same facts, would assist the court determine all issues and avoid multiplicity of suits, no prejudice was shown by the defendant, and the limitation objection was a matter for the substantive hearing.

Reasoning

Sections 100 of the Civil Procedure Act and Order 8 Rules 3 and 5 confer a discretion to allow amendments at any stage for determining the real question in controversy. The court weighed the lateness of the application against the absence of demonstrated prejudice and the desirability of having all issues determined in one suit. The defendant could amend its defence, and the limitation defence could be tested at trial. Costs were considered adequate compensation.

p. 5
02

Whether the claims for refund and mesne profits being allegedly time-barred under the Limitation of Actions Act should preclude the amendment

Holding

The limitation question was deferred to the substantive hearing; it did not bar leave to amend at the interlocutory stage.

Reasoning

The defendant argued under Sections 4(1)(a) and 7 of the Limitation of Actions Act that the new prayers were statute-barred and that the plaintiff had not sought extension of time. The court held that limitation is a substantive issue properly canvassed at hearing, and that the general principle against amendments depriving a defendant of a limitation defence is addressed by leaving the defence intact for trial.

p. 5

Legal principles established

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  • Amendments may be allowed at any stage of the suit; the court's discretion to allow or deny turns on all the circumstances, and an amendment may be disallowed only where it would cause injustice or prejudice to the other party.
  • Late amendments should generally be allowed if made in good faith and costs can compensate the other side, but a plaintiff will not be allowed to reframe its claim if the amendment would deprive the defendant of a limitation defence.

Court orders

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  1. 1.The plaintiff/applicant is granted leave to amend the plaint in terms of the annexed draft amended plaint
  2. 2.The amended plaint to be deemed duly filed upon payment of the requisite filing fees within 7 days from the date of the order
  3. 3.Immediately upon payment of the requisite fees, service of the amended plaint to be effected upon the defendant/respondent forthwith
  4. 4.The defendant/respondent to file and serve its amended defence, if need be, within 21 days from the date of service
  5. 5.Costs of the application awarded to the defendant/respondent, assessed at Kshs. 150,000/- payable within 30 days

The bench

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

MC
majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3A and 100 of the Civil Procedure Act and Order 8 Rules 3(1), (2) & 5 of the Civil Procedure Rules

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.

If the amendment will greatly prejudice the other party so as to lead to an injustice, then the amendment may be disallowed. But if no injustice is going to be caused to the other party, the court may allow the amendment with necessary directions.
p. 4Test for allowing or refusing amendment of pleadings
it is my finding that the proposed amendments, however late as they have been brought would assist the court in determining all the issues and avoid multiplicity of suits.
p. 5Late amendment allowed in absence of demonstrated prejudice
The limitation of time to seek the orders of mesne profits and rent are issues that can be dealt with substantively in the hearing. It is also my view that costs will be adequate compensation in the circumstance.
p. 5Limitation objection deferred to trial; costs as compensation
The notice of motion dated 5th February, 2025 is hereby allowed in the following terms: i. The plaintifi/applicant is hereby granted leave to amend the plaint in terms of the annexed draft amended plaint.
p. 5Final orders / disposition

Issues in the judgment

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minor

The judgment does not name the parties or the suit's case number anywhere in the text; the parties are referred to only as plaintiff/applicant and defendant/respondent.

minor

The judgment is silent on the specific court; the property dispute (LR 209/13957/1) suggests the Environment and Land Court but the coram does not state it.

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, "Postal Corporation of Kenya v Board of Trustees Teleposta Pension Scheme (Environment and Land Case 96 of 2009) [2025] KEELC 5144 (KLR)", Case Analysis (2025). Notice of motion dated 5th February, 2025 (suit filed 11th May, 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5144/eng@2025-07-10

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