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ELCAllowed· [2016] KEELC 1056 (KLR)

Flooring & Interiors Limited v Peter Ndegwa Muriithi & 2 others [2016] KEELC 1056 (KLR)

Environment and Land Court
22 February 2016
1,363 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenyan courts will usually let you fix or expand your court claim at any point, as long as the other side isn't unfairly harmed.

What this practically means

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Executive summary

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The plaintiff, Flooring & Interiors Limited, moved the court by notice of motion dated 15th June 2015 seeking leave to amend its plaint in a suit against the 1st defendant, Peter Ndegwa Muriithi, alleging invasion, encroachment and trespass into L.R 9395/103 and excision of a 0.6-hectare portion. The application was premised on the joinder of the Chief Land Registrar and Director of Survey as interested parties in January 2015, and on the need to enable the court to determine the real question in controversy. The 1st defendant opposed, contending that paragraph 10 of the draft amended plaint introduced a new cause of action and that the two-year delay in bringing the application was inordinate and prejudicial, and that the amendment would delay the hearing. Relying on Section 100 of the Civil Procedure Act and Order 8 Rule 5 of the Civil Procedure Rules, and on the principles in Institute For Social Accountability and Eastern Bakery v Castelino that amendments should be freely allowed where they can be made without injustice compensable by costs, the court compared paragraph 4 of the original plaint with paragraph 10 of the amended plaint. It found that both paragraphs raise the same complaint about the propriety of the process by which the 1st defendant obtained title, and that the amendment merely widened the scope of relief rather than introducing a new cause of action. Since the hearing had not commenced, the delay was not fatal and any prejudice was remediable by costs. The court allowed the application in terms of prayer 1 and ordered that costs of the application be in the cause.

Key legal issues

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01

Whether leave to amend the plaint should be granted

Holding

The amendment was allowed. It did not introduce a new cause of action but merely widened the reliefs; the delay was not fatal because the hearing had not commenced and any prejudice could be compensated by costs.

Reasoning

The court traced the power to amend to Section 100 of the Civil Procedure Act and Order 8 Rule 5 of the Civil Procedure Rules, and to the principle that amendments should be freely allowed if they can be made without injustice. Comparing paragraph 4 of the initial plaint with paragraph 10 of the amended plaint, the court found the cause of action - invasion, encroachment and trespass into L.R 9395/103 - unchanged. The joinder of the Chief Land Registrar and Director of Survey justified the amendment, which would assist the court in determining the real questions in controversy.

02

Whether paragraph 10 of the amended plaint introduces a new cause of action

Holding

No. The issues in paragraph 10 are basically the same as those in paragraph 4 of the initial plaint; both concern the propriety of the process by which the 1st defendant obtained title.

Reasoning

The court reviewed both pleadings and found that the impugned paragraph questions the same alleged invasion, encroachment and trespass identified in paragraph 4 of the original plaint. The amendment merely widened the scope of reliefs sought against the respondents. The 1st defendant's objection that the paragraph totally changes the cause of action therefore failed.

p. 3

Legal principles established

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  • Courts will normally allow amendment of pleadings at any stage of the proceedings if it can be done without occasioning injustice or prejudice to the other party, and any prejudice can be compensated by costs
  • Amending pleadings to widen the scope of relief does not necessarily introduce a new cause of action

Court orders

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  1. 1.The notice of motion dated 15th June 2015 is allowed in terms of prayer 1 (leave to amend the plaint granted)
  2. 2.The costs of the application shall be in cause

Authorities

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Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 8 Rule 5(1)

Cases cited (2)

  • Institute For Social Accountability & Another v Parliament of Kenya & 3 others
    [2014] eKLR
  • Eastern Bakery v. Castelino
    [1958] E.A. 461
Jurisdiction invoked
Section 100 of the Civil Procedure Act and Order 8 Rule 5 of the Civil Procedure Rules

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, "Flooring & Interiors Limited v Peter Ndegwa Muriithi & 2 others [2016] KEELC 1056 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1056/eng@2016-02-22

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