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ELCDismissedNot stated in the judgment (suit commenced by plaint filed 3rd June 1999)· [2013] KEELC 47 (KLR)

Joseph Tireiti v Jacob Kipsugot Arap Lagate & another [2013] KEELC 47 (KLR)

Environment and Land Court
3 October 2013
MSMunyao Sila
2,574 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to let a plaintiff add a completely new claim 14 years into the case, because it would unfairly disadvantage the defendants.

What this practically means

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Executive summary

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The plaintiff, who in 1999 sued for a permanent injunction over 26 1/2 acres of L.R No. 779/359 allegedly purchased from the 1st defendant in 1971, applied on 11th July 2013 for leave to amend the plaint under Sections 3A and 100 of the Civil Procedure Act and Order 8 Rules 3 and 5 of the Civil Procedure Rules, 2010, to introduce a claim for adverse possession through six new paragraphs and two new prayers. The application was made after both parties had closed their cases, with only submissions pending, in a suit that had run since 1999 and had already featured two contempt applications and a consent injunction limited to 26 1/2 acres. The defendants, through a replying affidavit sworn by the 2nd defendant, opposed the application, arguing it was filed ten days after the close of the defence case, altered the whole character of the suit, was brought in bad faith to fill gaps exposed at trial, and that adverse possession claims ought to be brought by Originating Summons. The court, Munyao Sila J, reviewed the discretion under Order 8 Rules 3 and 5 and the authorities, including Eastern Bakery v Castelino, Kyalo v Bayusuf Brothers, Mukibi v Bhavsar and Bwana v Said. He held that while amendments may be made at any stage, the chances of being granted leave diminish as proceedings progress; amendments that introduce a completely new cause of action and fundamentally alter the subject matter of the suit, especially late in the litigation, should only be allowed in exceptional circumstances. The court found the defendants would be grossly prejudiced, noted the plaintiff had no explanation for waiting eight years since the defendants allegedly obtained titles in 2005, and observed that a plaint-based claim could not be converted into an Originating Summons claim for adverse possession. The application was dismissed with costs to the defendants.

Key legal issues

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01

Whether leave to amend pleadings can be granted after close of hearing to add a new cause of action

Holding

Leave was declined; the amendment sought to substitute a new cause of action (adverse possession) at the very end of a 14-year-old suit, causing gross prejudice to the defendants.

Reasoning

Order 8 Rules 3 and 5 confer discretion to amend at any stage, but the discretion must be exercised to do justice and avoid prejudice. Amendments introducing a wholly new cause of action after both parties have closed their cases force the other side to litigate a different suit. The plaintiff could have filed a separate adverse possession claim from 2005 but waited eight years without explanation. Allowing the amendment would return the matter to its 1999 position.

p. 4
02

Whether a claim in adverse possession can be introduced by amendment to a plaint

Holding

No; following Bwana v Said, a claim commenced by plaint cannot be converted into one initiated by Originating Summons, as the amendment would effectively do.

Reasoning

The court relied on Bwana v Said, which was categorical that a claim begun by plaint cannot be reversed into a claim by Originating Summons. Adverse possession claims are properly initiated by Originating Summons, so permitting the amendment would change the nature and subject matter of the suit, which the authorities discourage.

p. 4

Legal principles established

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  • The court's discretion to allow amendment of pleadings diminishes as proceedings progress and should be refused where the amendment introduces a new cause of action that prejudices the other party.
  • Amendments that fundamentally alter the character or subject matter of the suit, especially when late, should only be allowed in exceptional circumstances.

Court orders

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  1. 1.Leave to amend the plaint declined
  2. 2.The application dated 11th July 2013 dismissed with costs to the defendants

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 100
  • Civil Procedure Rules, 2010Order 8 Rules 3 and 5
  • Constitution of Kenya, 2010Article 159

Cases cited (5)

  • Eastern Bakery v Castelino
    (1959) EA 461
  • Kyalo v Bayusuf Brothers Limited
    (1983) KLR 229
  • Mukibi v Bhavsar
    (1967) EA 473
  • Bwana v Said
    (1991) KLR 454
  • Kassam v Bank of Baroda
    (2002) KLR 294
Jurisdiction invoked
Sections 3A and 100 of the Civil Procedure Act; Order 8 Rules 3 and 5 of the Civil Procedure Rules, 2010; Article 159 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Tireiti v Jacob Kipsugot Arap Lagate & another [2013] KEELC 47 (KLR)", Case Analysis (2013). Not stated in the judgment (suit commenced by plaint filed 3rd June 1999). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/47/eng@2013-10-03

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