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ELCDismissedNotice of Motion dated 18th September 2025· [2026] KEELC 1310 (KLR)

Marino & another v Oduor & 9 others (Environment and Land Case 4 of 2022) [2026] KEELC 1310 (KLR)

Environment and Land Court
5 March 2026
MNMwangi Njoroge
1,318 words in judgment
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The bottom line

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A Malindi court refused a late attempt to fix land details in a lawsuit because the proposed corrections contradicted the evidence already given at trial.

What this practically means

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Executive summary

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The plaintiff applied by Notice of Motion dated 18th September 2025 for leave to amend the plaint in a land suit in Malindi, seeking to correct a typographical error. Counsel explained that the suit property, Portion Number 5519, measures 1.029 hectares as a subdivision of parcel 1738/21 measuring 112.82 acres, and that counsel had erroneously captured the mother title's measurement instead of the subdivision's. The first defendant opposed through grounds of objection, arguing the application was an abuse of process given earlier opportunities to amend in 2022, that it was an afterthought filed after the hearing closed and submissions were filed, and that the proposed amendments contradicted the documentary evidence. Only the first respondent filed submissions. The court, applying Section 100 of the Civil Procedure Act and Order 8 of the Civil Procedure Rules, reaffirmed that amendments may be sought at any stage before judgment and are generally freely allowed if costs can compensate the other side. However, it held that where a case has already been heard, any proposed amendment must accord with the evidence adduced. The draft amendment substituted a land reference number, folio, file number and measurement that did not correspond with the plaintiffs' own indenture or power of attorney. Allowing the amendment would leave the pleadings at variance with the witnesses' evidence, and no rehearing was sought, making the orders futile. The application was dismissed with costs to the respondent, and the suit was set for mention on 23rd March 2026 for further directions.

Key legal issues

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01

Timing of amendment applications after hearing

Holding

Amendments may be sought at any stage before judgment, and the timing alone - even on the eve of judgment - does not defeat an amendment application

Reasoning

The court held that since the law allows amendments even after hearing, the applicant could not be faulted for moving just before judgment. Success therefore turned not on the timing but on the nature of the proposed amendments, which the court examined against the evidence on record.

p. 3
02

Consistency of post-hearing amendments with the evidence

Holding

A post-hearing amendment that would place the pleadings at variance with the evidence adduced at trial must be refused

Reasoning

The indenture exhibited showed 112.82 acres, Folio 270A and File Number 6724, while the amendment proposed 1.029 hectares, Folio 2724/2 and File Number 6726; the power of attorney showed yet other numbers. Since the matter had been heard to conclusion and submissions filed, allowing the amendment would render the pleadings inconsistent with the evidence, and no rehearing was sought, so the orders would be futile.

p. 3

Legal principles established

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  • Amendments sought after a case has been heard must be in consonance with the evidence produced by the parties at the hearing
  • An application for amendment of pleadings may be made at any stage before judgment

Court orders

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  1. 1.The application dated 18th September 2025 is dismissed with costs to the respondent
  2. 2.The suit shall be mentioned on 23rd March 2026 for further directions

Authorities

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Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure Rules 2010Order 8, rule 3(5)
  • Limitations Act

Cases cited (4)

  • Eastern Bakery v. Castelino
    (1958) E.A.461
  • Unga Limited v Magina Limited
    [2014] KEHC 7645 (KLR)
  • St. Patrick's Hill School Limited v Bank of Africa Kenya Limited
    [2018] eKLR
  • Ochieng and Others v First National Bank of Chicago
    Civil Appeal Number 147 of 1991
Jurisdiction invoked
Section 100 of the Civil Procedure Act and Order 8 of the Civil Procedure Rules 2010

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, "Marino & another v Oduor & 9 others (Environment and Land Case 4 of 2022) [2026] KEELC 1310 (KLR)", Case Analysis (2026). Notice of Motion dated 18th September 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1310/eng@2026-03-05

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