Criticos & another v AIC Makutano & 66 others (Land Case 3 of 2024) [2025] KEELC 5966 (KLR) (Environment and Land) (29 August 2025) (Ruling)

Neutral citation: [2025] KEELC 5966 (KLR)

Republic of Kenya

In the Environment and Land Court at Voi

Environment and Land

Land Case 3 of 2024

EK Wabwoto, J

August 29, 2025

Between

Basil Criticos

1^st Plaintiff

Company Limited

2^nd Plaintiff

and

AIC Makutano

1^st Defendant

Mubuyuni Primary School

2^nd Defendant

David Kioko Mutua

3^rd Defendant

Alphonce Mwaka Masika

4^th Defendant

Thomas Mutanga

5^th Defendant

Ronald Mutiso Mutua

6^th Defendant

Ruth Mkumbulu Lelewu

7^th Defendant

Rebecca Njicha Mtua

8^th Defendant

Othaniel Mnene

9^th Defendant

Andrew Jumamosi Masamo

10^th Defendant

Attorney General

11^th Defendant

Adriana Shali Msafari

12^th Defendant

Marion Atieno Moon

13^th Defendant

Duncan Jacob Maghagha

14^th Defendant

Jane Waithira Kairo

15^th Defendant

James Fred Newton Wandera

16^th Defendant

Mbuyuni Women Group Organisation

17^th Defendant

Sabastian Letimiane Mwachila

18^th Defendant

Petro Chikira Edward

19^th Defendant

Edward Rashid Makore

20^th Defendant

Jackson Matano Fundi

21^st Defendant

Nzioki Mutua Mbulu

22^nd Defendant

Bahati Kinyoka

23^rd Defendant

Prostus A Seboru

24^th Defendant

Musa Saleri Fundi

25^th Defendant

Jospeh Saleri Fundi

26^th Defendant

Dennis Mwangeka Mombo

27^th Defendant

Janet Chilumo Mbwana

28^th Defendant

Pascal Sio Mtula

29^th Defendant

Martin Mramba

30^th Defendant

Nuhu Layoni Abdulrahaman

31^st Defendant

Mwanatumu Hamisi

32^nd Defendant

Jared Onyansi Nyaundi

33^rd Defendant

Clement Lenjo

34^th Defendant

Annabel Raduma Ojoo

35^th Defendant

Liverson Maroro

36^th Defendant

Linnet Ngele Idawo

37^th Defendant

Mwakulomba P Shete

38^th Defendant

Joseph M Mwachila

39^th Defendant

Godwin Mwiti Mugira

40^th Defendant

Elina Johana Mwachia

41^st Defendant

Challa Chemicals International Limited

42^nd Defendant

Denis N Munyi

43^rd Defendant

Michael Wiso

44^th Defendant

Alfred Isaack Mnyanya

45^th Defendant

Cornel Kinyili Kongo

46^th Defendant

Caroline Edina Atieno Adhola

47^th Defendant

John J Swai

48^th Defendant

John Mutua Mwangi

49^th Defendant

Mark Ngwati Mbithi

50^th Defendant

Chemomobo Teclah Mukhebet

51^st Defendant

Erastus A Maroo

52^nd Defendant

Paul Mwasaru Mwazumbo

53^rd Defendant

Jesmily Wakesho Mwazumbo

54^th Defendant

Nioram Holdings Limited

55^th Defendant

Japhet Mndambo Bashari

56^th Defendant

Tolowa Ramaita

57^th Defendant

Rennison A Mwadime

58^th Defendant

Ruth Kameme

59^th Defendant

Jackson Kimiri Msuya

60^th Defendant

Matenge K Ngau

61^st Defendant

Mutua Mbithi Mburu

62^nd Defendant

Ephraim Ngorio Simeon

63^rd Defendant

Benson Kisombe Msula Mbede

64^th Defendant

Land Settlement Fund Board of Trustees (Formerly Known as the Settlement Fund Trustees)

65^th Defendant

The Chief Land Registrar

66^th Defendant

The District Land Registrar, Taita Taveta

67^th Defendant

Ruling

1.This Ruling is in respect to the Plaintiffs/Applicants application dated 24^th July 2025 which seeks to further amend the Plaint dated 7^th February 2023. The application was supported by the Affidavit sworn by Basil Criticos on the 24^th July 2025.

2.Pursuant to the directions issued by the court, the said application was canvassed by way of written submissions. The Plaintiffs’ filed written submissions dated 18^th August 2025, no written submissions nor any response had been filed by any of the Defendants/Respondents as at the time this court retired to write its Ruling. In essence the application stands unopposed.

3.Even though the application is not opposed, In the Supreme Court of Kenya case of Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 Others [2018] eKLR, the court stated that;“As a court of Law, we have a duty in principle to look at what the application is about and what it seeks. It is not automatic that for any unopposed application, the court will as a matter of cause grant the sought orders. It behooves the court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted”.

4.Thus this court has a duty to look into the merits of the current application, even if the same is unopposed.

5.This Court has considered the application and written submissions file by the Plaintiffs together with the authorities cited in support of the application, the only issue to consider is whether the application for further amendment of the plaint is merited to warrant the grant of the orders sought.

6.Order 8 Rule 3(1) of the Civil Procedure Rules stipulates that;‘‘...the court may at any stage of the proceedings on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.’’And Rule 5(10) in particular provides that:-‘‘For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.’’

7.The rationale for amendment of pleadings need not be belaboured; it is so that the Court can then effectively and effectually determine the issues in controversy between the parties to the suit and therefore should be freely allowed.

8.Accordingly, if the Court is satisfied that good cause has been shown for it, it ought to allow an amendment, notwithstanding previous amendments. In this case, the Plaintiffs averred in the Supporting Affidavit that the 11^th, 65^th to 67^th Defendants whom principally the amendment is sought are directed against have yet to testify and hence no prejudice will be suffered on either party. That, to my mind, is a justifiable cause. The Defendants will still have a chance to amend their defence if so desired.

9.The Court of Appeal in considering a similar issue for amendment of pleadings stated in the case of Philip Chemwolo vs Augustine Kubende [1985]eKLR 492 that the duty of the Court is to do justice to the parties and not to punish them for their mistakes or omissions.

10.This court is of the view that the proposed amendments will ensure that the dispute between the parties is resolved expeditiously and with finality. This is so having regard to the fact that the pleadings can as a rule be allowed at any stage of the litigation so long as no prejudice will be suffered.

11.Consequently, considering that the suit has a further hearing date scheduled for 23^rd October 2025, the Plaintiffs application dated 24^th July 2025 is hereby allowed in the following terms: -a.The Plaintiffs are hereby granted leave to file and serve the “Further Further Amended Plaint” within 5 days from today.b.Upon service, the Defendants shall have 10 days to file and serve their amended defence.c.Each party to bear own costs of the application.Orders accordingly.

DATED, SIGNED AND DELIVERED BY EMAIL THIS 29^TH AUGUST 2025.E.K. WABWOTOJUDGE

Criticos & another v AIC Makutano & 66 others (Land Case 3 of 2024) [2025] KEELC 5966 (KLR) (Environment and Land) (29 August 2025) (Ruling)

Criticos & another v AIC Makutano & 66 others (Land Case 3 of 2024) [2025] KEELC 5966 (KLR) (Environment and Land) (29 August 2025) (Ruling)

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