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ELCAllowedNot stated in judgment· [2017] KEELC 3521 (KLR)

David Maina Mutahi Kaihura v The Estate of Ibrahim Manguma Kigathi alias Ibrahim Manguya Kigathi ( Deceased) (sued through the Legal representative /Administrator) Jane Nyaguthii Kigathi [2017] KEELC 3521 (KLR)

Environment and Land Court
15 February 2017
MSMUNYAO SILA
967 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a land buyer to amend his case late, ruling that pre-hearing amendments are fine if the other side can be compensated with costs.

What this practically means

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Executive summary

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The plaintiff, who claimed to have purchased one acre out of land parcel Nyandarua/Kahuru/672 from the late Ibrahim Kigathi on 15 August 2003 and to have taken possession after paying the full purchase price, sued the beneficiaries of the deceased's estate after they allegedly invaded the land. He sought a permanent injunction against them, a declaration that he was a bona fide purchaser, plus costs and interest. The defendant, the legal representative of the estate, denied any sale and pleaded that any sale was null and void for want of Land Control Board consent. Before the hearing, which had been certified ready in June 2015, the plaintiff applied under Order 8 Rules 3 and 5(1) of the Civil Procedure Rules and Sections 95 and 3A of the Civil Procedure Act for leave to amend the plaint to plead that the deceased refused to sign transfer and consent application documents, and to add a prayer for extension of time within which Land Control Board consent might be obtained. The defendant opposed, arguing the amendment struck at the root of her defence and would cause her prejudice. Applying the principle in Eastern Bakery vs Castelino (1958) EA 461 that pre-hearing amendments should be freely allowed where the other side can be compensated by costs, Munyao Sila J held that no injustice would be suffered since the defendant could amend her defence to resist the proposed extension. The application was allowed with the plaintiff to file and serve the amended plaint within 7 days, the defendant having 14 days thereafter to file an amended defence, subject to thrown away costs of Kshs. 12,500/= payable within 7 days, failing which the leave would lapse.

Key legal issues

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01

Principles governing amendment of pleadings before hearing

Holding

Amendments before hearing should be freely allowed where no injustice uncompensated by costs is caused to the other side; a party may amend to add a prayer for extension of time for Land Control Board consent, and the defendant can respond by amending her defence.

Reasoning

The court noted that when a case has not yet started, it is difficult to see what prejudice the other party will suffer, since that party is at liberty to amend their own pleadings in response. The defendant's contention that the amendment compromised her defence was not a sufficient basis to refuse the amendment; she would have an opportunity to amend her defence and plead why extension of time ought not be granted. The application was allowed subject to thrown away costs of Kshs. 12,500/= payable within 7 days.

p. 2

Legal principles established

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  • Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs.
  • Courts are generally liberal in allowing amendments unless great injustice incapable of compensation by costs would be caused.

Court orders

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  1. 1.Leave to amend the plaint granted
  2. 2.Plaintiff to file and serve the amended plaint within 7 days from the date of the ruling
  3. 3.Upon service, the defendant to have 14 days within which to file an amended defence, if any
  4. 4.Leave granted subject to plaintiff paying thrown away costs assessed at Kshs. 12,500/= within 7 days, failing which the leave granted will lapse

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 8 Rule 5(1)
  • Civil Procedure ActSection 95
  • Civil Procedure ActSection 3A

Cases cited (1)

  • Eastern Bakery vs Castelino
    (1958) EA 461
Jurisdiction invoked
Order 8 Rule 3 and 5(1) of the Civil Procedure Rules and Sections 95 and 3A of the Civil Procedure Act

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, "David Maina Mutahi Kaihura v The Estate of Ibrahim Manguma Kigathi alias Ibrahim Manguya Kigathi ( Deceased) (sued through the Legal representative /Administrator) Jane Nyaguthii Kigathi [2017] KEELC 3521 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3521/eng@2017-02-15

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