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ELCAllowedNotice of Motion dated 19th September 2016 in Originating Summons filed 7th July 2015· [2017] KEELC 1682 (KLR)

Fredrick Cheruiyot Kilel v David Cheruiyot Bett & 3 others [2017] KEELC 1682 (KLR)

Environment and Land Court
22 September 2017
JOJ.M. ONYANGO
673 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a lawsuit to be updated with new land parcel numbers after a title was sub-divided, confirming such honest corrections are usually permitted.

What this practically means

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Executive summary

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By a Notice of Motion dated 19th September 2016 brought under Order 8 Rule 3 of the Civil Procedure Rules, the applicant sought leave to amend an Originating Summons filed on 7th July 2015. The amendment sought to substitute the original title number KERICHO/SOSIOT/473, which no longer exists, with the new parcels KERICHO/SOSIOT/3343, 3344, 3345 and 3346 created upon sub-division. The respondents opposed through Grounds of Opposition filed by M/S Orina & Company Advocates, contending that the applicant had no genuine claim against them and that the suit lacked merit and should be dismissed with costs. The parties canvassed the application by written submissions; only the applicant filed submissions, with none from the respondents at the time of the ruling. The court held that the power to allow amendment of pleadings is discretionary and should be exercised to do justice, allowing amendments made in good faith that cause no prejudice incapable of compensation by damages. Applying the Institute for Social Accountability decision, the court found the object of amendment is to ensure litigation proceeds on the true state of facts. It concluded that the amendment, merely reflecting current parcel numbers, would assist in determining the real issues in controversy and that no prejudice to the respondents was demonstrated. The court allowed the application, deemed the draft Amended Originating Summons duly filed upon payment of filing fees, and ordered the applicant to bear the costs of the application.

Key legal issues

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01

Whether leave to amend pleadings should be granted to reflect new parcel numbers from sub-division

Holding

Amendment allowed as it reflects the true state of facts and causes no prejudice to the respondents

Reasoning

The court applied Order 8 Rule 3 and the principle that amendments should be allowed where made in good faith and without uncompensatable prejudice. The amendment merely updates parcel numbers following sub-division, assisting the court in determining the real controversy. No material was placed before the court showing prejudice to the respondents, so the discretion was exercised in favour of the applicant.

p. 2

Legal principles established

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  • Amendment of pleadings should be allowed if made in good faith and without prejudice to the other party that cannot be compensated by damages

Court orders

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  1. 1.Leave granted to amend the Originating Summons filed on 7th July 2015
  2. 2.The draft Amended Originating Summons filed with the Notice of Motion deemed duly filed upon payment of the requisite court filing fees
  3. 3.Costs of the application to be borne by the applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3

Cases cited (1)

  • Institute for Social Accountability & Another Vs. Parliament of Kenya & 3 Others
    (2014) eKLR
Jurisdiction invoked
Order 8 Rule 3 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, "Fredrick Cheruiyot Kilel v David Cheruiyot Bett & 3 others [2017] KEELC 1682 (KLR)", Case Analysis (2017). Notice of Motion dated 19th September 2016 in Originating Summons filed 7th July 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1682/eng@2017-09-22

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