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ELCAllowedNot stated in the judgment (application dated 17/3/2016 in Originating Summons dated 2nd May 2012, filed 14th May 2012)· [2017] KEELC 2634 (KLR)

John Kimathi M'muturi & 2 others v Erastus Githuru Chabari [2017] KEELC 2634 (KLR)

Environment and Land Court (as inferred from the coram; court not expressly named in the judgment text provided)
23 February 2017
753 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 late amendment and joinder in a land dispute, but made the plaintiffs pay costs for not naming everyone at the start.

What this practically means

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Executive summary

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This is a ruling on a notice of motion dated 17th March 2016 by the plaintiffs in an Originating Summons dated 2nd May 2012 concerning occupation and acreage claims over land. The plaintiffs sought leave to amend the OS, to add Margaret Tirindi Mwiti as a plaintiff, to have the draft amended OS deemed properly filed upon payment of fees, and costs in the cause. They explained that when the OS was filed they had not engaged a surveyor and did not know the exact acreage of each claimant; a surveyor, Joel Muriithi, later prepared a report dated 16th September 2015 detailing each occupier's acreage, including 7.6 acres claimed by the proposed plaintiff. The defendant opposed, arguing that the plaintiffs had no duty to apply to join another plaintiff, that no incapacity of Margaret was shown, that her authorization was not demonstrated, and that the wrong procedure had been used. The court found the surveyor's report could not anchor the joinder because the claimants were known when the OS was filed and no explanation was given for Margaret's omission. However, the record of 5th December 2016 showed both advocates had consented to the application being allowed, and the record had not been erased. The court also held the amendment remained essential to reflect the actual acreages of existing claimants even if the joinder failed. The application was allowed on conditions: the draft amended OS deemed filed upon payment of fees within seven days, the defendant to respond within 21 days, and the plaintiffs condemned to pay the costs of the application.

Key legal issues

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01

Whether the surveyor's report justified the amendment and joinder

Holding

The court found the surveyor's report could not anchor the application to add the proposed plaintiff, since the claimants were known when the OS was filed and no explanation was given for her omission.

Reasoning

The report is dated 16/9/2015, after the OS was filed. The claimants were known at filing even if exact acreages were not; neither the plaintiffs nor the proposed plaintiff explained why Margaret was omitted initially, so the report could not be the anchor for adding her.

p. 2
02

Effect of the recorded consent of 5/12/2016

Holding

Both advocates had agreed the application be allowed; the record had not been erased and the court acted on it.

Reasoning

Although the court on that date was handling a Notice to Show Cause, the record shows Mr. Muthaura stating both advocates agreed the amendment be allowed. The court treated this as a consent supporting allowance of the application.

p. 2
03

Whether the amendment remained necessary even if joinder was refused

Holding

Yes - the amendment was essential to reflect the actual acreage of the existing claimants regardless of the joinder prayer.

Reasoning

The surveyor's report changed the acreage figures for the present plaintiffs, so the amendment would still be necessary to reflect actual acreages even if the court disallowed adding Margaret Tirindi Mwiti.

p. 2
04

Defendant's objection on procedure for joining the proposed plaintiff

Holding

The defendant argued the wrong procedure was used and that no authority from Margaret was shown; the court nonetheless allowed the application, apparently on the recorded consent and the necessity of the amendment.

Reasoning

The defendant contended the plaintiffs had no duty to apply to bring another plaintiff on board, that no incapacity of Margaret was shown, and that her authorization was not demonstrated - essentially that the wrong procedure had been used. The court did not expressly resolve this but allowed the application with costs to the defendant.

p. 2

Legal principles established

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  • A court is a court of justice as well as a court of record, and an un-erased record of consent between advocates may be relied upon.

Court orders

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  1. 1.The application dated 17/3/2016 is allowed
  2. 2.The draft amended Originating Summons is deemed properly before the court upon payment of the requisite fees within seven days
  3. 3.Defendant is at liberty to file his response within 21 days
  4. 4.Plaintiffs to pay costs of the application
Jurisdiction invoked
Inherent power of the court to allow amendment of pleadings (Civil Procedure Act/Order rules invoked through the amendment application); express provision not quoted 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, "John Kimathi M'muturi & 2 others v Erastus Githuru Chabari [2017] KEELC 2634 (KLR)", Case Analysis (2017). Not stated in the judgment (application dated 17/3/2016 in Originating Summons dated 2nd May 2012, filed 14th May 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2634/eng@2017-04-05

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