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ELCAllowedNot stated in judgment· [2017] KEELC 1987 (KLR)

Tabitha Wanjiku Kariithi v John Ndegwa Kariithi [2017] KEELC 1987 (KLR)

Environment and Land Court
14 June 2017
LWL N Waithaka
1,028 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a defendant to amend his defence mid-case to reflect cancelled land titles, confirming courts will permit pleadings to track changed circumstances.

What this practically means

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Executive summary

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The defendant, John Ndegwa Kariithi, brought a notice of motion dated 30th December 2016 seeking leave to amend his statement of defence to include a counterclaim. The amendment was sought to reflect changed circumstances: the suit properties, L.R Thegenge/Karia/4432 to 4436, had been cancelled during the pendency of the suit, with the property reverting to its original title, Thegenge/Karia/269. Through the proposed counterclaim the defendant sought judgment against the plaintiff for an order of subdivision of the suit property into equal shares and transfer of those shares to the beneficiaries. The plaintiff opposed through grounds of opposition dated 20th February 2017, contending the application was frivolous, vexatious and an abuse of process, and argued that the proposed counterclaim admitted her claim; she urged dismissal with costs. The court, guided by Section 100 of the Civil Procedure Act and Order 8 Rule 3 of the Civil Procedure Rules, and the principles in Central Kenya Limited v Trust Bank Limited and Institute for Social Accountability, held that the discretion to allow amendment is wide and unfettered but must be exercised judicially. Although authority suggests the power to partition land held in common vests in the Registrar, the court held that in exercise of its inherent power to do justice it could order the Registrar to hear the tenants in common with a view to severing their co-tenancy interests. The application was allowed as prayed on 14th June 2017 at Nyeri.

Key legal issues

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01

Whether leave to amend the defence to include a counterclaim should be granted

Holding

The application was allowed; the amendment was necessary to determine the real question in controversy in light of the cancellation of the suit titles and reversion of the property to its original title

Reasoning

The court set out the principles from Central Kenya Limited v Trust Bank Limited: amendments necessary to determine the real question in controversy should be allowed absent undue delay, no new or inconsistent cause of action, no vested interest affected and no injustice to the other side. The applicant sought to plead the reversion of the suit property to its original title and a counterclaim for subdivision; the court found the amendment would enable it to do justice in view of the changed circumstances and allowed the application as prayed.

p. 3

Legal principles established

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  • The discretion of a trial court to allow amendments of pleadings is wide and unfettered but must be exercised judicially upon defined principles
  • A party may be allowed to amend pleadings to reflect changed circumstances, including cancellation of title during the pendency of a suit

Court orders

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  1. 1.Leave granted to the defendant to amend his statement of defence to include a counterclaim and to reflect the changed circumstances of the case
  2. 2.Application allowed as prayed

Authorities

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Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 8 Rule 3

Cases cited (5)

  • Central Kenya Limited v Trust Bank limited
    (2000)2 E.A 365
  • Institute For Social Accountability & Another v Parliament of Kenya & 3 others
    [2014]eKLR
  • Teresa Andawo Ogola & 3 others v George Onyango Obwanda
    [2016] eKLR
  • Kiprono Arap Koske v. John Cheruiyot Koske
    (2016) eKLR
  • Ali Sharif Maulana & Another v. Scavo Pietro & Another
    (2015) e KLR
Jurisdiction invoked
Section 100 of the Civil Procedure Act and 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, "Tabitha Wanjiku Kariithi v John Ndegwa Kariithi [2017] KEELC 1987 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1987/eng@2017-06-14

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