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ELCPartially AllowedEldoret E&L Case (not stated in judgment)· [2014] KEELC 351 (KLR)

Bishop Benedicto Makani Bahati & 4 others v Ben Muneria Wesonga & 4 others [2014] KEELC 351 (KLR)

Environment and Land Court
26 June 2014
MSMunyao Sila
825 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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You don't need to amend your case to name a county government when suing a defunct council — the law automatically transfers the suit to the county.

What this practically means

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Executive summary

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The plaintiff, who had agreed in 2008 to buy land parcel Eldoret Municipality Block 2/83/1 from the 1st defendant and had occupied it and built a temporary church, sued the 1st defendant, Eri Plastics Ltd (the alleged fraudulent subsequent purchaser) and the Municipal Council of Eldoret, later adding the Land Registrar Uasin Gishu and Chief Land Registrar as 4th and 5th defendants and claiming damages for demolition of the church. By an application dated 9 September 2013 the plaintiff sought leave to amend the plaint in two respects: to add the County Government of Uasin Gishu as 6th defendant, as successor of the Municipal Council of Eldoret, and to plead particulars of illegality against the 4th and 5th defendants. Munyao Sila J applied the liberal principle that amendments should be allowed absent hardship and prejudice, and granted leave for the particulars of illegality. However, following his own earlier decision in Titus Gatitu v Municipal Council of Eldoret, he held that under Section 33 of the 6th Schedule of the Constitution of Kenya, 2010 the County Government is deemed the automatic successor of a defunct local authority, so no amendment is necessary; such amendments would only cause cost and hardship. Leave to include the 6th defendant was therefore disallowed, and the plaintiff was ordered to bear the costs of the application.

Key legal issues

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01

Whether the County Government of Uasin Gishu needed to be joined by amendment as successor of the Municipal Council of Eldoret

Holding

Leave to add the County Government as 6th defendant was refused; the suit against the defunct local authority is deemed automatically assigned to the County Government by operation of law under Section 33 of the 6th Schedule of the Constitution

Reasoning

The court relied on its earlier decision in Titus Gatitu v Municipal Council of Eldoret, holding that insisting on amendments in litigation involving defunct local authorities causes unnecessary cost and hardship. The assignment of the suit to the County Government occurs automatically by operation of law, so no amendment is needed to reflect that position.

p. 2
02

Whether the proposed particulars of illegality against the 4th and 5th defendants could be pleaded by amendment

Holding

Leave was granted to amend the plaint to plead the particulars of illegality on the part of the 4th and 5th defendants

Reasoning

Applying the general liberal approach to amendments, the court found no prejudice or hardship in allowing those particulars and gave leave for those amendments, subject only to the exclusion of any reference to a 6th defendant.

p. 2

Legal principles established

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  • Where a local authority established under the former Local Government Act (CAP 365) is a party, it is unnecessary to amend pleadings to substitute the successor County Government, as the transition is effected by operation of law under Section 33 of the 6th Schedule of the Constitution of Kenya, 2010
  • Amendments to pleadings should be allowed liberally unless they cause hardship and great prejudice to any party

Court orders

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  1. 1.Leave granted to amend the plaint to plead particulars of illegality on the part of the 4th and 5th defendants
  2. 2.Leave to include the County Government of Uasin Gishu as 6th defendant disallowed
  3. 3.Plaintiff to bear the costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Section 33 of the 6th Schedule
  • Local Government ActCAP 365

Cases cited (1)

  • Titus Gatitu v Municipal Council of Eldoret
    Eldoret E&L No 207 of 2012
Jurisdiction invoked
Environment and Land Court jurisdiction (statute not specified in judgment)

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, "Bishop Benedicto Makani Bahati & 4 others v Ben Muneria Wesonga & 4 others [2014] KEELC 351 (KLR)", Case Analysis (2014). Eldoret E&L Case (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/351/eng@2014-06-26

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