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ELCPartially AllowedNot stated in the extracted text (references to suits 339 of 2022 and 284 of 2022 appear in the appearances)

Ngaine (Suing as a Legal Representative of the Estate of John Mbeti Muriithi – Deceased) v Kamau & 5 others (Environment and Land Case E339 of 2022) [2026] KEELC 18 (KLR)

Environment and Land Court
15 January 2026
COChristine Ochieng
1,832 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court allowed a landowner to update her lawsuit with new facts, rejecting an attempt to kill the case as 'abated'.

What this practically means

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Executive summary

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The court determined two competing Notice of Motion applications canvassed jointly by written submissions. The Plaintiff sought leave to amend her Plaint dated 13th October 2022 to plead new events occurring after filing: the 1st Defendant's contempt of court sentence of 5th December 2024 for trespass on the suit land, and the 2nd Defendant's purported acquisition of a parallel title, together with particulars of fraud and illegality and a claim for demolition orders. The 1st Defendant opposed, contending the suit had abated because summons to enter appearance, served more than two years earlier, had lapsed without any step taken, so the court lacked jurisdiction to entertain the amendment application; she sought a declaration of abatement and striking out of the suit. Framing two issues — abatement and leave to amend — the court held that Order 24 Rule 4, which governs abatement upon death of a party, was inapplicable: no party had died and there were pending applications before the court, so the suit had not abated. On amendment, applying Order 8 Rules 3 and 5 and the Court of Appeal's summary of the law on amendment in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited, the court held that amendments may be made at any stage to determine the real question in controversy, that the proposed amendments were material and made to present the full facts, and that no prejudice was demonstrated since the matter was still at pre-trial. The amendment application was allowed with corresponding leave for the Defendants to amend their defences, each within fourteen days, and the abatement application was dismissed. Costs were made costs in the cause.

Questions the Court framed

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

  1. 1.Whether this suit has abated
  2. 2.Whether the Plaintiff can be granted leave to amend her Plaint

Key legal issues

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01

Whether the suit had abated under Order 5 Rule 1(6) / Order 24 Rule 4 of the Civil Procedure Rules

Holding

The suit has not abated; the Court retains jurisdiction over the matter and the Plaintiff's application

Reasoning

The court applied Order 24 Rule 4, which governs abatement on the death of a party, and noted that no party had died and that there were pending applications being dealt with by the Court. Abatement as claimed by the 1st Defendant was therefore misconceived, and the Court had jurisdiction to entertain the application for leave to amend.

p. 3
02

Whether the Plaintiff should be granted leave to amend her Plaint

Holding

Leave granted; amendment serves determination of the true substantive merits, matter is at pre-trial stage and no prejudice demonstrated

Reasoning

Applying Order 8 Rule 3 and Rule 5 and the Court of Appeal's summary of the law on amendment in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited, the court held that amendments should be allowed at any stage if made in good faith, are material, and cause no prejudice. The Plaintiff sought to plead subsequent events — trespass by the 1st Defendant and the 2nd Defendant's acquisition of a parallel title — which were relevant to the true merits. Defendants get corresponding leave to amend their defences.

p. 4

Legal principles established

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  • A suit cannot abate under Order 24 Rule 4 where no party has died and there are pending applications in the matter
  • Amendment of pleadings may be allowed at any stage of the proceedings where it serves the real question in controversy and causes no demonstrated prejudice

Court orders

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  1. 1.The Plaintiff is granted leave of fourteen (14) days to file and serve her amended Plaint as shown in the draft amended Plaint annexed to the supporting affidavit in the application dated 1st August 2025
  2. 2.Upon service the Defendants are granted corresponding leave of fourteen (14) days to file and serve their respective amended statements of Defence
  3. 3.Costs be in the cause
  4. 4.The 1st Defendant's application dated 21st August, 2025 dismissed

The bench

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

CO
majority

Wrote the judgment

Jurisdiction invoked
Civil Procedure Rules, Order 8 Rule 3 and Order 24 Rule 4

Relief refused

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1st Defendant's application for a declaration that the suit has abated and for striking out the Plaintiff's suit

No party has died; Order 24 Rule 4 on abatement was inapplicable; pending applications existed

p. 3

Costs

Costs 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.

I find the instant application for amendment merited and will allow it.
p. 4leave to amend plaint
Further, no party has died. In relying on the legal provisions quoted and applying them to the circumstances at hand, I find that this suit has not abated as claimed by the 1st Defendant.
p. 3abatement of suit
Further, there is no demonstrated prejudice which shall be caused if the amendments are allowed since the matter is still at the pre trial stage.
p. 4no prejudice from amendment
The Plaintifi is granted leave of fourteen (14) days to file and serve her amended Plaint as shown in the draft amended Plaint annexed to the supporting afidavit in the application dated 1st August 2025.
p. 4final orders

Issues in the judgment

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minor

Court name and case number are not stated in the extracted judgment; two different suits (339 of 2022 and 284 of 2022) are referenced in the appearances without explanation

minor

The quoted text of Order 8 Rule 3 appears garbled/incomplete, with the rule text running into the Order 8 Rule 5 quotation

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, "Ngaine (Suing as a Legal Representative of the Estate of John Mbeti Muriithi – Deceased) v Kamau & 5 others (Environment and Land Case E339 of 2022) [2026] KEELC 18 (KLR)", Case Analysis (2026). Not stated in the extracted text (references to suits 339 of 2022 and 284 of 2022 appear in the appearances). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/18/eng@2026-01-15

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