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ELCAllowedNot stated in the judgment

Arodi & another (Ssuing through their Attorney Nicodemus Atito Arodi) v Estate of the Late Washington Jakoyo Midiwo (Suing through the administrator Beatrice A Muganda & Samson O Midiwo) (Environment and Land Case 22 of 2023) [2026] KEELC 3208 (KLR)

Environment and Land Court of Kenya
21 May 2026
850 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out an amended defence filed without proper permission, showing courts strictly limit what amendments are allowed.

What this practically means

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Executive summary

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The 1st Third Party moved the court by Notice of Motion dated 9th October, 2025, under Order 4 Rules 1 and 4, Order 7 Rules 3, 8, 9, 12, Order 1 Rules 15 and 22 of the Civil Procedure Rules and Sections 1A and 1B of the Civil Procedure Act, seeking the striking out and expungement of an amended statement of Defence and Counterclaim dated 26th May, 2025, filed by the joint Administrators of the estate of the deceased Defendant, Washington Jakoyo Midiwo, with costs. The applicant argued that following the court's ruling of 30th January, 2025, which revived the third-party proceedings and ordered substitution of the deceased by his personal representatives, the only leave granted was to amend pleadings to reflect the substitution. The amended Defence and Counterclaim, however, purported to radically alter the cause of action against the Third Parties, converting what had been a third-party claim by the deceased Defendant into a counterclaim as if the Third Parties were parties to the original suit. The Respondents opposed, asserting that the court had allowed the amendment in the 30th January, 2025 ruling and that the amendments were necessary to enable the court to decide the real issues. The court examined its own record and found that nothing in the orders of 30th January, 2025 permitted an amended defence and counterclaim; leave to amend was limited to reflecting the substitution. It held that the amended Defence and Counterclaim was irregularly filed without leave and contravened the law, third-party proceedings being governed by Order 1, Rules 15-23. The court struck out and expunged the amended Defence and Counterclaim and awarded costs to the 1st Third Party. Ruling dated and signed at Kisumu, delivered virtually on 21st May, 2026.

Questions the Court framed

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

  1. 1.Whether the amended statement of Defence and Counterclaim dated 26th May, 2025, filed pursuant to leave, complied with the scope of the orders of 30th January, 2025
  2. 2.Whether the amended Defence and Counterclaim introduced claims beyond the substitution order, altering the cause of action against the Third Parties
  3. 3.Whether the amended Defence and Counterclaim should be struck out and expunged from the record

Key legal issues

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01

Whether leave was granted to file an amended Defence and Counterclaim

Holding

No order on record allowed the personal representatives to file an amended defence and counterclaim; the ruling of 30th January, 2025 only revived the third-party proceedings and ordered substitution.

Reasoning

The court examined the orders issued in the ruling of 30th January, 2025, which reviewed earlier orders, revived the third-party proceedings, extended time for substitution, substituted the deceased's personal representatives, and awarded throw-away costs. Nothing in those orders permitted amendment of pleadings. The only amendment leave granted was to reflect the substitution by replacing the deceased's name with that of the personal representatives.

p. 2
02

Whether the amended Defence and Counterclaim was lawfully filed

Holding

The amendment went beyond the scope of the substitution and was irregularly filed without leave, contravening the law.

Reasoning

The court found that the amendment radically purported to alter the cause of action against the Third Parties, converting a claim by the deceased Defendant against them under Order 1 into one as if they were parties to the original suit by counterclaim. Since no leave existed for such amendment and third-party proceedings are governed by Order 1 Rules 15-23, the filing was unlawful and struck out.

p. 2

Legal principles established

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  • A party granted leave to amend pleadings for a specific purpose cannot go beyond the scope of that leave; amendments made without leave of the court are irregularly filed.
  • Third-party proceedings are governed by Order 1, Rules 15-23 of the Civil Procedure Rules.

Court orders

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  1. 1.The amended statement of Defence and Counterclaim dated 26th May, 2025, is struck out and expunged from the court record
  2. 2.Costs of the application are awarded to the 1st Third Party/applicant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 4 Rules 1 and 4, Order 7 Rules 3, 8, 9, 12, Order 1 Rules 15 and 22 of the Civil Procedure Rules as read with Sections 1A and 1B of the Civil Procedure Act (Cap. 21)

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 that the amended Defence and Counterclaim introduced by the personal representatives of the estate of the deceased herein is irregularly filed without leave of the court and that the same contravenes the law.
p. 3Amendment without leave
The amended defence and counterclaim is hereby struck out and expunged from the record.
p. 3Final orders - striking out
Costs to the 1st Third Party/applicant.
p. 3Final orders - costs
Nothing in these orders allowed amendment to any pleadings.
p. 2Scope of leave to amend

Issues in the judgment

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minor

The Replying Affidavit is deposed as sworn on 1st December, 2025, while the application it answers is dated 9th October, 2025; also the ruling is dated and signed 21st May, 2026, though application pleadings are dated 2025 — chronology appears internally consistent, but the deponent names (Respondents) differ from the defendants named in the record.

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, "Arodi & another (Ssuing through their Attorney Nicodemus Atito Arodi) v Estate of the Late Washington Jakoyo Midiwo (Suing through the administrator Beatrice A Muganda & Samson O Midiwo) (Environment and Land Case 22 of 2023) [2026] KEELC 3208 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3208/eng@2026-05-21

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