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ELCAllowedNot stated in judgment· [2017] KEELC 1095 (KLR)

Shadrack Ongaro Osoro v Mwaura Karuga [2017] KEELC 1095 (KLR)

Environment and Land Court
24 October 2017
COChristine Ochieng
421 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 defendant to strengthen his defence with a counterclaim, confirming courts freely permit amendments that reveal the real dispute.

What this practically means

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Executive summary

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This was an unopposed application by the Defendant, Mwaura Karuga, by Notice of Motion dated 26th February 2015 brought under Order 6A Rules 3, 5 and 8 of the Civil Procedure Rules, seeking leave to amend his Statement of Defence. The Defendant contended that the Defence as filed was bare and did not bring out the real issues for determination, in that it failed to plead that it was the Plaintiff who had been criminally charged with malicious damage to the Defendant's property, and that there was no counterclaim to enable him to be compensated for the damage or loss allegedly caused by the Plaintiff. The application was supported by the Defendant's own affidavit and was argued on 31st July 2017 by Mr Kerongo, counsel for the Defendant, the Plaintiff's advocates, Moturi Mbeche & Company Advocates, being absent though duly served. No replying affidavit was filed in opposition. Relying on Order 8 rule 5(1) of the Civil Procedure Rules, which empowers the court to order amendment of any document for the purpose of determining the real question in controversy or correcting any defect or error, the court allowed the application. The Defendant was ordered to file an amended Statement of Defence within 14 days, with costs in the cause.

Key legal issues

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01

Whether leave to amend a Statement of Defence should be granted where the plaintiff does not oppose the application

Holding

The court allowed the amendment relying on Order 8 rule 5(1) since the application was unopposed and the amendment would enable the court to determine the real issues

Reasoning

The Defendant deposed that the Defence as filed was bare and did not bring out the issues in controversy, and that he wished to plead that it was the Plaintiff who had been criminally charged with malicious damage to the Defendant's property, and to include a counterclaim for the damaged property. No replying affidavit was filed by the Plaintiff. The court found the amendment would enable proper determination of the suit and would not prejudice the Plaintiff.

p. 2

Legal principles established

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  • For the purpose of determining the real question in controversy, the court may order any document to be amended on such terms as are just

Court orders

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  1. 1.Leave granted to amend the Statement of Defence and include a counterclaim
  2. 2.The Defendant to file an amended Statement of Defence within 14 days from the date of the ruling
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 rule 5(1)
  • Civil Procedure RulesOrder 6A Rules 3, 5 and 8
Jurisdiction invoked
Order 8 rule 5(1) of the Civil Procedure Rules and Order 6A Rules 3, 5 and 8 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, "Shadrack Ongaro Osoro v Mwaura Karuga [2017] KEELC 1095 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1095/eng@2017-10-24

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