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ELCAllowedNot stated in the judgment as provided· [2017] KEELC 1465 (KLR)

Kipkurgat Kibor Kibiego v Nicholas Gichuru [2017] KEELC 1465 (KLR)

Environment and Land Court
17 August 2017
AOA. Ombwayo
479 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court allowed a defendant to add an adverse possession claim and bring his seller into the case, finding no unfairness to the plaintiff.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Eldoret on the defendant's application for leave to amend his defence and counterclaim and to enjoin Meshack Ronoh as the 2nd defendant in the intended amended counterclaim. The underlying suit was brought by the plaintiff, Kipkurgat Kibiego Kibor, seeking orders of eviction against the defendant, Nicholas Gichuru. The defendant had filed a defence and counterclaim on 15th July 2012, claiming the suit land as a purchaser for value from Meshack Ronoh and asserting ownership by adverse possession, having been in possession for over 12 years uninterrupted. He sought to amend so as to enjoin Ronoh, his vendor, for a fair, just and all-inclusive determination of the suit. The application was supported by the defendant's own affidavit and opposed by a replying affidavit which the court found defective because the deponent's identity was unclear - the first page indicated it was sworn by Nicholas Gichuru while the body appeared sworn by Kipkurgat Kibor Kibiego - and the court declined to consider it. On the merits, the court found that the plaintiff had not demonstrated that he would suffer any prejudice if the orders were granted, and allowed the application. The court ordered that the defence be amended as prayed, that the amended defence be served within 7 days, and that the plaintiff file a reply to the amended defence and defence to counterclaim within 7 days of service. Judgment delivered on 17th August 2017.

Key legal issues

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01

Leave to amend defence and counterclaim and enjoin a proposed 2nd defendant

Holding

Amendment and joinder granted as amendments serve the interest of an all-inclusive determination and no prejudice was shown.

Reasoning

The defendant wished to amend his defence and counterclaim to enjoin Meshack Ronoh, from whom he purchased the suit land, and to plead adverse possession arising from over 12 years of uninterrupted possession. The plaintiff opposed by affidavit, but the court found the affidavit defective as to the deponent's identity and disregarded it. The court found no demonstrated prejudice to the plaintiff and allowed the amendment, with a 7-day timeline for amended pleadings and reply.

p. 2

Legal principles established

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  • An amendment will be allowed where the opposing party demonstrates no prejudice.

Court orders

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  1. 1.Leave granted to amend the defence and counterclaim as prayed
  2. 2.The defence to be amended and served within 7 days
  3. 3.The plaintiff to file a reply to the amended defence and defence to counterclaim within 7 days of service
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a suit relating to land (eviction, adverse possession and purchaser's counterclaim); specific provision not stated in the judgment.

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, "Kipkurgat Kibor Kibiego v Nicholas Gichuru [2017] KEELC 1465 (KLR)", Case Analysis (2017). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1465/eng@2017-08-17

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