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ELCAllowedNotice of motion dated 17th August 2015 (in suit over Kisumu/Kasule/1584)· [2016] KEELC 874 (KLR)

Alice Chabala v Tom Onditi Mauabi & another [2016] KEELC 874 (KLR)

Environment and Land Court
25 May 2016
SKS.M. Kibunja
663 words in judgment
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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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The 2nd Defendant, Philafe Engineering Limited, filed a notice of motion dated 17th August 2015 seeking leave to amend its defence to introduce a counterclaim and additional parties to the counterclaim, supported by the affidavit of its director, Eng. Pertash A. Oloo. The Plaintiff, Alice Chabala, opposed the application through a replying affidavit filed on 21st August 2015. The application was heard on 13th April 2016 by way of rival verbal submissions. The court framed two issues: whether the amendment would assist the court decide the issues better, and who should pay costs. Reviewing the procedural history, the court noted that the Plaintiff's claim concerned land parcel Kisumu/Kasule/1584 and sought a permanent injunction and, after amendment, surrender and cancellation of the Defendants' title deed; the Attorney General had already been enjoined as third party. Upon perusing the proposed counterclaim, the court found that the proposed counterclaim defendants were already parties to the suit (the Plaintiff, the Attorney General and one other) and that the main prayer concerned ownership of the same land parcel. Holding it fair that all issues over the parcel be settled in one suit, the court allowed the amendment. However, because the Defendants had taken too long to file the application, they were ordered to pay the Plaintiff's costs of the application in any event. The amended defence and counterclaim were to be filed and served on all parties within fourteen days. Judgment delivered by S.M. Kibunja, Environment and Land Judge, on 25th May 2016 at Kisumu.

Key legal issues

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01

Whether the Defendants should be allowed to amend their defence to introduce a counterclaim and additional parties

Holding

Amendment allowed because the proposed counterclaim concerns ownership of the same land parcel claimed by the Plaintiff and involves parties already before the court.

Reasoning

The court perused the proposed counterclaim annexed to the supporting affidavit and noted that the proposed defendants were parties already in the suit and that the main prayer concerned ownership of the same land parcel. Allowing the amendment would enable all issues over Kisumu/Kasule/1584 to be resolved in one suit. The delay in bringing the application was addressed only on costs, not by denying the amendment.

p. 2
02

Who should pay costs of the application

Holding

Defendants to pay the Plaintiff's costs because of the delay in filing the application.

Reasoning

Although the amendment was allowed, the Defendants had taken too long to file the application for amendment. The court therefore exercised its discretion on costs against them, awarding the Plaintiff costs of the application in any event.

p. 2

Legal principles established

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  • An amendment should be allowed where it will enable the court to settle all issues between the parties in one suit.

Court orders

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  1. 1.The notice of motion dated 17th August 2015 is allowed with costs to the Plaintiff in any event
  2. 2.The amended defence and counterclaim be filed and served on all the parties within 14 days
  3. 3.Defendants to pay the Plaintiff's costs of the application for the delay in bringing it
Jurisdiction invoked
Inherent jurisdiction over interlocutory applications in the suit (amendment of defence and counterclaim)

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, "Alice Chabala v Tom Onditi Mauabi & another [2016] KEELC 874 (KLR)", Case Analysis (2016). Notice of motion dated 17th August 2015 (in suit over Kisumu/Kasule/1584). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/874/eng@2016-05-25

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