REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MALINDI ELC CASE NO. E328 OF 2016 BAJABER LIMITED & ANOTHER …………………..……….…..…. ……..PLAINTIFFS VERSUS CHIEF LAND REGISTRAR AND OTHERS ……………….……………… DEFENDANTS RULING 1. By an application dated 17th February 2026, the second defendant seeks to amend its statement of defence dated 17 th March 2017. The application is supported by the 2 sworn affidavits of Brian Ikol Director of Legal Affairs and Dispute Resolution of the second defendant, and is premised on the grounds that in exercise of its mandate, the second defendant conducted an investigation which yielded a report dated 28th March 2018; that the investigation revealed several facts which were not in the second defendant’s knowledge at the time of filing their defence. It is urged that the findings materially alter the core of the second defendant’s defence as they bear clarification on the manner of acquisition of the titles in question their authenticity, the current status of the plots as well as the ownership. The second defendant thinks that the amendments sought will assist the court in the resolution of the issues brought before it in the present suit. It is stated that at the time of filing its original defence, investigations were still ongoing and there was only limited information on the subject properties. However, investigations revealed that Land MLDELCNO328/26-RLG/DF-17.02.26/FH-22.04.26/LH-18.05.26/DR 30.06.26F . Page 1 of 4
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Reference Numbers 12852/311-434 no longer exist and the applicant is of the view that this court can no longer issue directions in relation to those titles. 2. The 7th to 30th defendants oppose the application while the other parties do not; and they filed their replying affidavit dated 16 th May 2026 sworn by Said Adam the 12th defendant. The deponent deplores the age of the case and the timing of the application. He depones that the application cannot be said to have been brought timeously. He speculates that it is for the facilitation of more delay in the conclusion of the case, yet a fair trial requires expeditious disposal of proceedings; that it raises contradictory allegations in relation to the admitted position of facts that had been stated by the second defendant; that JR Number 7 of 2018 Ex Parte Salim Mbili Adam And 23 Others Versus National Land Commission And Another was determined, and the second defendant was a party to that Judicial Review application in which the court ordered prohibition to issue, prohibiting the first and second respondents from a revoking the applicants’ certificate of title for Land Reference Numbers 12852/ 311434. 3. I have considered the application, the response and the submissions of the 2nd defendant and the 7th to 30th defendant. 4. Amendment of pleadings can be made any time before judgment, and they are usually freely allowed unless the application for leave to amend is being made after inordinate and inexcusable delay or they would prejudice a fair trial. The general rule as stated in Eastern Bakery v Castellino (1958) EA 461 is that amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side. There is no injustice if the other party can be compensated by costs. In J.C. Patel V D. Joshi 1952 19 EACA12, the court stated that: MLDELCNO328/26-RLG/DF-17.02.26/FH-22.04.26/LH-18.05.26/DR 30.06.26F . Page 2 of 4
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“The rule of conduct of the court in such a case is that however negligent or careless may have been the first omission and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side.” 5. This court finds that the only crucial additions to the earlier statements in the second defendant’s defence are the findings of the investigation that was conducted in the matter. The investigations having taken place and yielded a report before the suit has been heard, the findings thereof may amount to relevant evidence at the hearing of the case since the second defendant conducted the said investigations in the course of its duties as a constitutional Commission. 6. Evidence of previous litigation such as the Judicial Review application and its impact on the present suit, or on the actions taken by the second respondent during investigations, may also feature in the hearing, and it is for the trial court to assess evidence before it in order to come to a just conclusion as to which evidence is relevant in the case and admit it in accordance with the rules of evidence to arrive at a fair judgment in the matter. 7. Further, this court does not find any contradiction between the contents of the report exhibited by the second defendant and the original defence. In addition, those documents can always be assessed for their contravention of the orders made in the Judicial Review application. 8. This is a matter in which none of the parties was aggressive enough to progress it to the point of hearing of evidence of the witnesses. Hearing having not begun, it is this court’s view that minimal inconvenience or prejudice would be occasioned to any of the parties by the amendment of the second defendant's defence. 9. The upshot of the foregoing is that this Court finds that the application dated 17th February 2026 has merit and the same is allowed. The second defendant shall file its amended defence within 7 days from the MLDELCNO328/26-RLG/DF-17.02.26/FH-22.04.26/LH-18.05.26/DR 30.06.26F . Page 3 of 4
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date of this order and serve it upon all the parties within 7 days of filing. All parties who may need to respond to the amendments shall amend their pleadings accordingly within 14 days of service. This matter shall be mentioned on 30th September 2026 for pretrials. Dated, signed and delivered at Malindi on this 30th day of June, 2026. MWANGI NJOROGE JUDGE, ELC, MALINDI. MLDELCNO328/26-RLG/DF-17.02.26/FH-22.04.26/LH-18.05.26/DR 30.06.26F . Page 4 of 4
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