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ELCAllowedMalindi HCCC (as per judgment; consolidated with Malindi HCCC No. 66 of 2012)· [2014] KEELC 404 (KLR)

John Gitau Mungai v Stephen Thuku Kabebe & 3 others [2014] KEELC 404 (KLR)

Environment and Land Court (High Court as constituted at the time), Malindi
9 May 2014
1,412 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was an interlocutory application dated 30th January 2014 by the Plaintiff, brought under Order 8 Rules 3(1), (2) and 5 and Order 1 Rule 10 of the Civil Procedure Rules, 2010, seeking leave to re-amend the amended plaint out of time and, in the process, to enjoin the Lamu District Land Control Board as the 8th Defendant. The Plaintiff averred that after filing the plaint and amended plaint he discovered further fraudulent actions by the Defendants, including the issuance of a Land Control Board consent for the transfer of the suit property, which consent he denied ever having sought or attended. The 1st, 2nd and 3rd Defendants filed a Notice of Preliminary Objection and Grounds of Opposition, arguing that the intended amendments were aimed at delaying the suit, that the amended plaint and reply to defence had been filed out of time and without leave, and that the re-amended plaint was therefore premised on an irregular pleading. The Plaintiff relied on Central Kenya Ltd v Trust Bank Ltd, Gaso Transport Services v Obene and other authorities, submitting that no hearing had commenced and no prejudice would be suffered. The court, allowing the application, held that courts should generally allow amendments where no injustice not compensable by costs is shown, that joinder of the Land Control Board was necessary to determine the pleaded fraud issues and avoid multiplicity of suits, and that the Defendants' objection regarding the irregularly filed amended plaint could not succeed absent a formal application to strike it out. The applications in this matter and in Malindi HCCC No. 66 of 2012 were allowed as prayed, with the re-amended plaints to be filed and served within 14 days upon payment of requisite fees.

Key legal issues

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01

Whether to grant leave to re-amend the plaint and join the Lamu Land Control Board

Holding

The application was allowed; the joinder of the Land Control Board was necessary to determine the pleaded issues of fraud.

Reasoning

The court held that the Defendants had not shown any injustice or injury not compensable by costs. Joining the Land Control Board, which allegedly issued the consent to transfer the suit property, was necessary for determining the fraud issues and would avoid a multiplicity of suits, enabling the court to effectually and completely determine all questions involved.

p. 3
02

Whether the objection that the Amended Plaint was filed out of time and irregularly defeats the amendment application

Holding

No such objection could succeed without a formal application to strike out; there being none before the court, the objection failed.

Reasoning

The court noted that although the Defendants argued that the proposed re-amended plaint was premised on an irregularly filed Amended Plaint, there was no application before the court to strike out that Amended Plaint. The objection therefore could not be raised in opposition to the current application, and a formal application was required.

p. 3

Legal principles established

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  • A party whose pleadings were filed out of time must file a formal application to have them struck out; such an objection cannot be raised in opposition to an amendment application.
  • Amendments should be freely allowed at any stage unless they occasion injustice not compensable by costs, and joinder is proper where necessary for complete adjudication.

Court orders

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  1. 1.Leave granted to the Plaintiffs to re-amend their amended Plaint out of time in the manner set out in the annexed Re-Draft Amended Plaint
  2. 2.The Lamu Land Control Board to be enjoined in the suit
  3. 3.Re-amended Plaints to be filed and served within 14 days from the date of the Ruling upon payment of requisite fees
  4. 4.Application dated 30th January 2014 allowed in this matter and in Malindi HCCC No. 66 of 2012 as prayed
Jurisdiction invoked
Order 8 Rules 3(1), (2) and 5 and Order 1 Rule 10 of the Civil Procedure Rules, 2010

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, "John Gitau Mungai v Stephen Thuku Kabebe & 3 others [2014] KEELC 404 (KLR)", Case Analysis (2014). Malindi HCCC (as per judgment; consolidated with Malindi HCCC No. 66 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/404/eng@2014-05-09

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