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ELCPartially AllowedNot stated in the judgment (suits instituted 20 May 2009; Eldoret E&L case)· [2014] KEELC 488 (KLR)

Lalji Shivji Kerai v Municipal Council of Eldoret [2014] KEELC 488 (KLR)

Environment and Land Court

5 February 2014

MSMunyao Sila

1,468 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

What this practically means

Executive summary

This was a ruling on a notice of motion by the plaintiff seeking, under Order 8 Rules 3, 5 and 7 of the Civil Procedure Rules, 2010, to amend the plaint in a suit instituted on 20 May 2009 against the Municipal Council of Eldoret. The suit concerns land parcel Eldoret Municipality Block 8/667, allegedly demolished by Council employees in March 2009, with damages of Kshs. 10,214,172.80 claimed. An earlier amendment had added the District Land Registrar, Uasin Gishu and John Kipchumba as defendants. The present application sought to add the County Government of Uasin Gishu as 4th defendant and to add a prayer for damages for loss of income at Kshs. 542,000/= monthly rent over a 99-year leasehold. Counsel for the applicant argued that under Section 33 of the Sixth Schedule to the Constitution the County Government is the successor of the Municipal Council; the State did not oppose, and the Municipal Council did not respond. Following his own earlier decision in Titus Gatitu v Municipal Council of Eldoret, the judge held that the County Government is deemed the successor and proper defendant, but that Section 59 of the Urban Areas and Cities Act means proceedings continue as filed without amending parties. The application was disallowed as regards adding the County Government as a separate party, but allowed as regards amending the reliefs. No orders as to costs were made.

Key legal issues

Whether the County Government of Uasin Gishu should be added as a separate defendant in place of, or alongside, the defunct Municipal Council of Eldoret

Holding

The application to add the County Government as a separate party was disallowed; the County Government is deemed the successor and proper defendant without any amendment of parties.

Reasoning

The court reiterated its earlier holding in Titus Gatitu v Municipal Council of Eldoret that Section 33 of the Sixth Schedule makes the County Government the legal successor of the defunct Municipal Council, while Section 59 of the Urban Areas and Cities Act directs that litigation by or against local authorities continues as filed. Allowing amendments in every such case would burden litigants with unnecessary delays and expenses and set an undesirable precedent.

p. 3

Whether the plaint may be amended to add a claim for damages for loss of income (loss of rent)

Holding

Allowed; the amendment of the reliefs sought was permitted.

Reasoning

The State did not oppose the application and there was no opposition from the Municipal Council. The court found no reason to refuse the amendment of reliefs and allowed the addition of the claim for damages for loss of rent.

p. 3

Legal principles established

Under Section 33 of the Sixth Schedule to the Constitution, the County Government is the legal successor of the defunct Municipal Council and must be deemed the proper defendant, but under Section 59 of the Urban Areas and Cities Act there is no need to amend pleadings; proceedings continue as filed and any benefit or burden falls on the County Government

Court orders

1.The application is disallowed in so far as it seeks to add the County Government of Uasin Gishu as a separate party to the suit
2.The application is allowed in so far as it seeks to amend the reliefs sought in the suit
3.No orders as to costs

Authorities

Legislation

Constitution of Kenya, 2010Section 33, Sixth Schedule
Civil Procedure Rules, 2010Order 8 Rules 3, 5 and 7
County Governments ActSection 134
Urban Areas and Cities ActSection 59
Local Governments Act (Cap 265)Repealed by Section 134 of the County Governments Act with effect from 13 March 2013

Cases cited (1)

Titus Gatitu v Municipal Council of Eldoret
Eldoret E&L Case No. 207 of 2012

Jurisdiction invoked: Order 8 Rules 3, 5 and 7 of the Civil Procedure Rules, 2010 (amendment of pleadings)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Lalji Shivji Kerai v Municipal Council of Eldoret [2014] KEELC 488 (KLR)", Case Analysis (2014). Not stated in the judgment (suits instituted 20 May 2009; Eldoret E&L case). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/488/eng@2014-02-05

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