Isaac Kipkemboi Chesire, Kimutai Chesire, Isaac Kimutai, Mary Chepkoech Chesire & Jonah Kibiwott Chesire v Joseph Kimitei Kwambai, J M S, Growell Farm Ltd, Land Registrar, Uasin Gishu, Rose Cheruiyot Rono, Henry Barmao, Kibet Kangogo & Kimaiyo Rono (Environment & Land Case 520 of 2012) [2016] KEELC 861 (KLR)
The bottom line
#An Eldoret court refused to let land defendants amend their case or swap in a new party, punishing years of delay and dealings with land under a court order.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to further amend the defence and counterclaim should be granted
The application for amendment was refused because the delay of about four years since the 2011 subdivisions prejudiced the plaintiffs and the amendment would effectively condone disobedience of a subsisting court order.
The court found the principles governing amendment well settled: an amendment should not prejudice the other side. The subdivisions creating the new parcels occurred in 2011 while an injunction was in force, yet the defendants only moved in 2016 after two plaintiffs had testified. The subject matter would be changed despite the existing order, occasioning injustice to the plaintiffs. The doctrine of lis pendens rendered dealings with the suit property during the pendency of the suit impermissible.
Whether the 2nd defendant could be substituted by his wife as guardian ad litem
The substitution was not well founded because guardianship orders can only issue from the High Court under section 26 of the Mental Health Act, and no such order had been obtained.
The court examined section 26 of the Mental Health Act, which empowers 'the court' to make orders for management and guardianship of the estate of a person suffering mental disorder. Section 2 defines that court as the High Court. Since the ELC is not the High Court for this purpose and no High Court guardianship order was produced, Matilda Rose Sawe's status as guardian ad litem was unestablished.
The applicability of the doctrine of lis pendens to the subdivided parcels
The doctrine applied: property in litigation cannot be transferred or dealt with so as to affect the rights of other parties, and such dealings bind purchasers with or without notice.
Relying on section 52 of the Indian Transfer of Property Act 1882 as explained in Bellamy v Sabine and adopted by Madan J in Manwji v U.S. International University, the court held that alienation pendente lite cannot be permitted to prevail because it would make it impossible to bring a suit to a successful determination. Titles to the subdivided parcels issued in 2011 during the subsistence of the court order and could not affect the plaintiffs' rights.
Legal principles established
#- Amendment of pleadings should not be allowed where it prejudices the other party or would condone disobedience of a court order
- A transfer of suit property to a third party during the pendency of a suit is null and void under the doctrine of lis pendens
- Orders for the management or guardianship of the estate of a person of unsound mind may only be made by the High Court under section 26 of the Mental Health Act
Court orders
#- 1.The notice of motion dated 29.2.2016 is dismissed
- 2.Costs of the application awarded to the plaintiffs
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court over pleadings and case management; Mental Health Act (guardianship reserved to the High Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaac Kipkemboi Chesire, Kimutai Chesire, Isaac Kimutai, Mary Chepkoech Chesire & Jonah Kibiwott Chesire v Joseph Kimitei Kwambai, J M S, Growell Farm Ltd, Land Registrar, Uasin Gishu, Rose Cheruiyot Rono, Henry Barmao, Kibet Kangogo & Kimaiyo Rono (Environment & Land Case 520 of 2012) [2016] KEELC 861 (KLR)", Case Analysis (2016). Eldoret ELC Case (formerly Eldoret HCCC No. 93 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/861/eng@2016-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.