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ELCAllowedNot stated in the ruling (Notice of Motion dated 8/6/18)· [2018] KEELC 620 (KLR)

Moses Mbogo Gachango & another (Suing as the personal representatives of Josiah Gachango Mwangi - Deceased) v Rahab Wanjiru Ng’ang’a & another [2018] KEELC 620 (KLR)

Environment and Land Court
29 November 2018
JKJ.G. Kemei
1,109 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Murang'a (J.G. Kemei, J) determined a Notice of Motion dated 8 June 2018 in which the Plaintiffs sought to amend the plaint by substituting the name of the 1st Defendant, replacing Rahab Wanjiru Nganga with Ruth Wanjiru Nganga. The Plaintiffs, who are the family of the late Josiah Gachango Mwangi, asserted through their advocate Anthony Karanja Kagiri that the wrong name was a clerical oversight; the advocate deponed that he had conducted the antecedent Nairobi Succession Cause No. 1946 of 2002 (Estate of Nganga Mwangi alias Suleiman Nganga Mwangi) and knew the named 1st Defendant was deceased. The 2nd Defendant opposed, filing grounds of objection that the application was incompetent because Rahab Wanjiru Nganga had died and no substitution could occur without a grant of representation for her estate, and that the suit itself was defective. The court framed the single issue as whether the amendment was merited. Applying section 100 of the Civil Procedure Act and Order 8 of the Civil Procedure Rules, the court reiterated that amendments are liberally granted where they raise the real question in controversy without compensable injury. It found the misnaming to be a bona fide mistake and allowed the application. The court noted the question of whether the 2nd Defendant is a legal representative of the deceased's estate was contested and triable, to be determined at trial. The application was allowed with costs to the 2nd Defendant, with directions to amend and serve within 14 days.

Key legal issues

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01

Whether the plaint should be amended to substitute the name of the 1st Defendant

Holding

The court found the naming of Rahab Wanjiru Nganga instead of Ruth Wanjiru Nganga was a bona fide mistake and allowed the amendment.

Reasoning

Section 100 of the Civil Procedure Act empowers the court to amend any defect or error at any time, and Order 8 governs amendments. The general rule is that amendments are liberally granted where they raise the real question in controversy and cause no compensable injury. Counsel for the Plaintiffs disclosed personal knowledge that the name was included in error, and the 2nd Defendant suffered no prejudice beyond costs.

p. 2
02

Whether the 2nd Defendant is a legal representative of the deceased's estate

Holding

The court held this is a contested triable issue to be determined at trial, not on the amendment application.

Reasoning

The Further Affidavit deponed that the Defendants were to be appointed administrators of the estate of Rahab Wanjiru Nganga, while the Plaint pleaded they were appointed administrators of the estate of Suleiman Nganga. The court found the two positions inconsistent and noted the Plaint did not describe the capacity in which the Defendants were sued, making the question of representation a matter for trial.

p. 2

Legal principles established

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  • Leave to amend pleadings will be liberally granted where it enables the real question in controversy to be raised and causes the opposite party no injury beyond what can be compensated by costs.
  • Where a suit has been instituted in the name of the wrong person, the court may order substitution of the correct party.

Court orders

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  1. 1.The application to amend the plaint is allowed
  2. 2.The Plaintiffs to amend the Plaint and serve the parties within 14 days and thereafter set the suit for hearing
  3. 3.Costs in favour of the 2nd Defendant
Jurisdiction invoked
Section 100 of the Civil Procedure Act and Order 8 of the Civil Procedure Rules (amendment of pleadings); Order 1 Rule 9 (substitution of parties)

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, "Moses Mbogo Gachango & another (Suing as the personal representatives of Josiah Gachango Mwangi - Deceased) v Rahab Wanjiru Ng’ang’a & another [2018] KEELC 620 (KLR)", Case Analysis (2018). Not stated in the ruling (Notice of Motion dated 8/6/18). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/620/eng@2018-11-29

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