Rosemary Chebet Koros v Samwel Kiprono Sang [2015] KEELC 720 (KLR)
The bottom line
#A Kenyan court allowed a defendant to amend his defence and counterclaim a fraudulent land sale, but only after depositing Kshs 150,000 as security for costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the application is res judicata
It is not; the earlier rejected application sought to join the parties as third parties, whereas this application seeks amendment of defence to introduce a counterclaim, which has never been canvassed
The court distinguished the earlier disallowed third party application, noting no previous application to amend the defence to introduce a counterclaim had been made. It also held the counterclaim is indeed against the plaintiff since its success would nullify her title, and that a separate suit would raise the same issues without prejudice to the plaintiff.
Whether leave to amend should be granted and on what terms
Leave granted, but conditional on the defendant depositing Kshs. 150,000/= as security for costs, given the court's view that the intended counterclaim appears weak under Section 69B of the Transfer of Property Act
While courts are liberal in allowing amendments absent unremediable prejudice, the court was skeptical of the counterclaim because the sale was under a chargee's statutory power of sale under the Transfer of Property Act, under which the purchaser's title is protected and the defendant's remedy lies in damages against the chargee. Conditional leave balanced the defendant's right to plead with the plaintiff's protection.
Status of the intended added parties
HFCK and David Musyoka Nzuku are to be 2nd and 3rd defendants to the defendant's counterclaim, not defendants to the plaintiff's claim
The court clarified the nature of the joinder: the proposed parties are enjoined only as defendants to the counterclaim, not to the plaintiff's claim for eviction and injunction.
Legal principles established
#- Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice, injustice being absent where the other side can be compensated by costs
- A purchaser at a sale in exercise of a mortgagee's statutory power of sale takes a title not impeachable for lack of notice, irregular exercise of the power, or absence of a case for sale, and a person damnified has his remedy in damages
Court orders
#- 1.The defendant is granted leave to amend his defence to include a counterclaim, conditional on depositing Kshs. 150,000/= as security for costs
- 2.The security be deposited in court within 21 days and the amended defence filed and served within 14 days of the deposit
- 3.In default of depositing the security within 21 days, the leave will automatically lapse and the suit to proceed as filed
- 4.The defendant will bear the costs of the application
- Jurisdiction invoked
- Order 7 Rules 8 and 9; Order 8 Rules 3 and 5 of the Civil Procedure Rules, and Sections 1A and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rosemary Chebet Koros v Samwel Kiprono Sang [2015] KEELC 720 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/720/eng@2015-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.