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ELCAllowedNot stated in the ruling· [2017] KEELC 2948 (KLR)

Doris Wangithi Maina & 2 others v Peris Wanjiru Maina & another [2017] KEELC 2948 (KLR)

Environment and Land Court
21 April 2017
BOB. N. Olao
554 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court allowed a defendant to amend his defence and add a counterclaim years after filing, holding that delay alone is no barrier before trial begins.

What this practically means

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Executive summary

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This is an interlocutory ruling by the Environment and Land Court on prayer No. 4 of the 2nd defendant's Notice of Motion dated 25th January 2016 in a suit concerning land parcel No. KIINE/THIGIRICHI/2134. On 4th October 2016 the parties had consented to maintain the status quo on the land, disposing of prayer No. 3 of the same application (injunctive relief), leaving prayer No. 4 - a request for leave to amend the defence and introduce a counter-claim - undetermined. The court was directed to rule on that prayer on the basis of the affidavits filed. Applying Order 8 Rule 3 of the Civil Procedure Rules, and relying on Central Kenya Ltd v Trust Bank Ltd and Eastern Bakery v Castelino, the court held that amendments should be freely allowed where necessary for the just determination of the dispute and where any prejudice can be compensated by costs. Although the application was filed in 2014, the trial had not commenced, and delay alone would not defeat the amendment. The court allowed prayer No. 4, granting the 2nd defendant leave to amend his defence and file a counter-claim in terms of the draft annexed, to be served within 15 days, with the plaintiffs and 1st defendant having 30 days to reply and defend the counter-claim. The 2nd defendant was ordered to meet the costs of the application.

Key legal issues

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01

Whether leave to amend the defence and introduce a counter-claim should be granted despite the application having been filed in 2014

Holding

Leave was granted; the amendments were necessary for the just determination of the dispute and the delay did not bar the relief since costs could compensate the plaintiffs

Reasoning

Order 8 Rule 3 of the Civil Procedure Rules confers power on the court to allow amendments on terms as to costs as may be just. Trial had not commenced despite the application being filed in 2014. The policy of the law is that amendments should be freely allowed unless they cause prejudice incapable of compensation by costs, as stated in Central Kenya Ltd v Trust Bank Ltd and Eastern Bakery v Castelino. The proposed amendments would enable the just determination of the dispute, and delay alone does not disqualify an applicant.

p. 2

Legal principles established

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  • The overriding consideration in an application to amend pleadings is whether the amendments are necessary for the just determination of the dispute between the parties
  • Amendments to pleadings are to be freely allowed unless they prejudice the other party in such a way that costs cannot be adequate compensation
  • Delay alone will not deny a party the remedy to amend pleadings

Court orders

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  1. 1.The 2nd defendant is granted leave to amend his defence and introduce a counter-claim in terms of the draft annexed to his Notice of Motion
  2. 2.The said defence and counter-claim to be served upon the plaintiffs and the 1st defendant within 15 days of the ruling
  3. 3.The plaintiff and 1st defendant are granted leave to file their reply to the defence and defence to the counter-claim within 30 days of service of the amended defence and counter-claim
  4. 4.The 2nd defendant shall meet the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3

Cases cited (2)

  • CENTRAL KENYA LTD VS TRUST BANK LTD & 5 OTHERS
    2000 e K.L.R.
  • EASTERN BAKERY VS CASTELINO
    1959 E.A 461
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, "Doris Wangithi Maina & 2 others v Peris Wanjiru Maina & another [2017] KEELC 2948 (KLR)", Case Analysis (2017). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2948/eng@2017-04-21

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