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ELCAllowedNot stated in the judgment· [2017] KEELC 87 (KLR)

Jabess Oduor Mdhai v County Secretary County Government of Mombasa [2017] KEELC 87 (KLR)

Environment and Land Court
28 June 2017
CYC. Yano
1,047 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed a landowner to fix a wrong defendant's name in his land suit, showing courts permit genuine naming mistakes.

What this practically means

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Executive summary

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The Plaintiff, Jabess Oduor Mdhai, sued the County Secretary, County Government of Mombasa, seeking a permanent injunction to restrain the Defendant from trespassing on, alienating or dealing with Plot No. 3 Mombasa, together with damages for trespass. The Defendant contested the suit on the basis that the County Government of Mombasa is a body corporate capable of suing and being sued in its own name. The Plaintiff then brought a Notice of Motion dated 6th March 2017 under Sections 1A, 1B, 3A and 100 of the Civil Procedure Act and Order 8 Rule 3 and Order 51 of the Civil Procedure Rules, seeking leave to amend the Plaint by deleting the words 'The County Secretary' from the Defendant's name. The Defendant opposed, contending that proceedings ought to have been directed at the County Government in its corporate name, that the amendment was an afterthought and mala fides, and that no genuine mistake had been demonstrated. The court reviewed Order 8 Rule 3 and Order 8 Rule 5, noting that the court has discretion to amend pleadings at any stage to determine the real question in controversy, including amendment to correct a party's name even where it has the effect of substituting a new party, provided the mistake was genuine. The court found the dispute was between the Plaintiff and the County Government of Mombasa, that the inclusion of 'The County Secretary' was an excusable mistake, and that no prejudice had been demonstrated. The court allowed the application, granting leave to amend within 14 days, and awarded the costs of the application to the Defendant.

Key legal issues

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01

Whether leave to amend the Plaint to correct the Defendant's name should be granted

Holding

The application was allowed; the mistake was excusable and the Defendant would suffer no prejudice, being compensable by costs.

Reasoning

Order 8 Rule 3 permits amendment to correct the name of a party notwithstanding substitution of a new party, provided the mistake was genuine and not misleading. The court found the dispute was between the Plaintiff and the County Government of Mombasa, and that the inclusion of 'The County Secretary' was an excusable mistake. No prejudice was demonstrated by the Defendant, and any prejudice could be adequately compensated by costs.

p. 2

Legal principles established

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  • The Court has discretionary power to amend pleadings at any stage before judgment for purposes of determining the real question between the parties, and may allow amendment to correct the name of a party even where the effect is to substitute a new party, if the mistake was genuine.

Court orders

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  1. 1.Plaintiff's Notice of Motion dated 6th March 2017 allowed
  2. 2.Leave granted to the Plaintiff to amend the Plaint and file an amended Plaint within 14 days of the ruling
  3. 3.Costs of the application awarded to the Defendant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 100
  • Civil Procedure RulesOrder 8 Rules 3, 5; Order 24 Rules 3, 4, 5, 6; Order 1 Rules 9, 10; Order 51
  • Constitution of Kenya, 2010Not specified
Jurisdiction invoked
Sections 1A, 1B, 3A and 100 of the Civil Procedure Act and Order 8 Rule 3 and Order 51 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, "Jabess Oduor Mdhai v County Secretary County Government of Mombasa [2017] KEELC 87 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/87/eng@2017-06-28

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