John Kimathi M'muturi & 2 others v Erastus Githuru Chabari [2017] KEELC 2634 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the surveyor's report justified the amendment and joinder
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.
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.
Effect of the recorded consent of 5/12/2016
Both advocates had agreed the application be allowed; the record had not been erased and the court acted on it.
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.
Whether the amendment remained necessary even if joinder was refused
Yes - the amendment was essential to reflect the actual acreage of the existing claimants regardless of the joinder prayer.
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.
Defendant's objection on procedure for joining the proposed plaintiff
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.
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.
Legal principles established
#- 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
#- 1.The application dated 17/3/2016 is allowed
- 2.The draft amended Originating Summons is deemed properly before the court upon payment of the requisite fees within seven days
- 3.Defendant is at liberty to file his response within 21 days
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.