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ELCPartially Allowed· [2017] KEELC 1793 (KLR)

Mirema Drive Estate Ltd v Church of Jesus Christ of Latter Day [2017] KEELC 1793 (KLR)

Environment and Land Court
22 September 2017
BEB. M. Eboso
1,187 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi land court allowed a plaintiff to amend their claim, confirming that Kenyan courts freely permit pleadings amendments unless the other side suffers prejudice costs cannot fix.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (B. M. Eboso J) determines the plaintiff's Notice of Motion dated 1st August 2016 seeking leave to file a further amended plaint. The plaintiff sought to add a substantive prayer for eviction, alleging that despite a status quo order the defendant remains in occupation of the suit property, and to increase its damages claim to Kshs 10,000,000/- owing to the rise in the property's market value since filing suit. The defendant, through a replying affidavit of its secretary/trustee Hesbon Usi, opposed the application as not made in good faith, as intended to delay the suit, and as containing an unsubstantiated valuation constituting material misrepresentation. Both parties filed written submissions and made oral highlights. The plaintiff relied on Article 50 of the Constitution, Section 100 of the Civil Procedure Rules and Order 8 Rule 3, citing authorities establishing that amendments should be freely allowed where they enable the court to determine the real issues and cause no prejudice. The defendant relied on Eastern Bakery v Castelino and other authorities on prejudice and delay. The court applied the settled principle that amendments should be freely allowed provided no injustice or prejudice uncompensated by costs results, found no evidence of delay or bad faith, and held the defendant could be compensated by costs and could respond and rebut at trial. Leave to amend was granted subject to the law on limitation of actions, with corresponding leave to the defendant to amend its defence. The defendant was awarded costs of the application assessed at KShs 20,000/=, payable within 30 days, failing which the amendments would stand struck out.

Key legal issues

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01

Whether leave should be granted to the plaintiff to further amend the plaint

Holding

Application allowed; amendments freely allowed as no prejudice or delay established, with corresponding leave to the defendant to amend its defence

Reasoning

The court applied the settled principle that amendments should be freely allowed at any stage provided no prejudice or injustice uncompensated by costs results. The defendant alleged delay, bad faith and material misrepresentation regarding the increased valuation claim, but the court found no evidence that the amendments were aimed at delaying justice or that costs could not compensate the defendant. The defendant retains the opportunity to respond to the amendments and rebut the claims at trial.

p. 3

Legal principles established

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  • Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice to the other side, which can be compensated by costs

Court orders

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  1. 1.Leave granted to the plaintiff to further amend the plaint subject to the law on limitation of actions
  2. 2.The plaintiff's further amended plaint to be filed and served within 14 days
  3. 3.The defendant granted corresponding leave to amend its defence
  4. 4.Costs of the application awarded to the defendant, assessed at KShs.20,000/=, payable by the plaintiff within 30 days
  5. 5.In default of payment, the amendments shall stand struck out

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Civil Procedure RulesSection 100
  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 8

Cases cited (9)

  • CENTRAL KENYA LTD V TRUST BANK AND 4 OTHERS
    CA No. 222 of 1998 (2000) eKLR
  • BOSIRE OGERO V ROYAL MEDIA SERVICES
    (2015) eKLR
  • INSTITUTE FOR SOCIAL ACCOUNTABILITY & ANOTHER V PARLIAMENT OF KENYA & 3 OTHERS
    (2014) eKLR
  • AAT HOLDINGS LTD V DIAMOND SHIELDS INTERNATIONAL
    (2014) eKLR
  • MARIA ROSITA CARDOZO V ROBERT KIBAGENDI OTACHI & ANOTHER
    (2013) eKLR
  • EASTERN BAKERY V CASTELINO
    (1958) EA 461
  • KASSAM V BANK OF BARODA (KENYA LTD)
    (2002) eKLR
  • IQUIP LIMITED V EAST AFRICAN MARINE SYSTEMS LTD
    (2009) eKLR
  • PETER NGANGA MUIRURI V HOUSING FINANCE COMPANY OF KENYA LIMITED & 2 OTHERS
    Nairobi CA 101 of 2011
Jurisdiction invoked
Civil Procedure Rules, Order 8 (amendment of pleadings)

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, "Mirema Drive Estate Ltd v Church of Jesus Christ of Latter Day [2017] KEELC 1793 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1793/eng@2017-09-22

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