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ELCAllowedNot stated in the judgment as provided· [2018] KEELC 1232 (KLR)

Muriela Shirandula Sanya v Vincent Osundwa & 2 others [2018] KEELC 1232 (KLR)

Environment and Land Court
23 October 2018
NMN.A. Matheka
895 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed interested parties to amend their defence and add a counterclaim, confirming courts generously permit amendments that serve justice without prejudice.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kakamega (N.A. Matheka, J) delivered on 23rd October 2018 on a notice of motion dated 11th September 2018 brought under Order 8 rule 3 of the Civil Procedure Rules by the interested parties. They sought leave to amend their defence to include a counterclaim, and that the draft amended defence and counterclaim be deemed duly filed and served upon payment of requisite court fees. The interested parties explained that prior to the suit the 1st interested party was the absolute registered owner of land parcel KAKAMEGA/MATSAKHA/2064, a subdivision of KAKAMEGA/MATSAKHA/133 registered in the plaintiff's name. The plaintiff obtained an exparte judgment cancelling the subdivisions and reverting the titles, without the interested parties being heard. On 4th October 2017, after their joinder as interested parties, the exparte judgment and consequential orders were set aside, but the lands registry had not yet reflected that order. Having initially filed a motion seeking cancellation of the register entries, they opted instead to raise the issue by counterclaim, necessitating the amendment. The plaintiff opposed, contending he never sued the applicants and thus they had no right to amend. The court applied the amendment principles from AAT Holdings Ltd v Diamond Shields International Ltd, drawing on the Central Kenya Ltd and Isaac Awuondo authorities, held that no prejudice would result and that it was in the interest of justice that all matters be brought before the court. The application was allowed as prayed, with costs in the cause.

Key legal issues

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01

Leave to amend pleadings to introduce a counterclaim

Holding

Application allowed; amendments necessary for the court to adjudicate the real controversy and no prejudice shown.

Reasoning

The court applied the Central Kenya Ltd principles on amendment: amendments necessary for determining the real question in controversy, avoiding multiplicity of suits, introducing no new or inconsistent cause of action, affecting no vested rights, and causing no uncompensatable prejudice. It found no prejudice would be suffered by the parties, that all matters ought to be brought before the court for a just and fair decision, and allowed the application as prayed.

p. 2

Legal principles established

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  • The discretion of a trial court to allow amendments of a plaint is wide and unfettered but must be exercised judicially upon defined principles.
  • A triable issue raises a prima facie defence that should go to trial, not one that must succeed.

Court orders

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  1. 1.Leave granted to the interested parties to amend their defence
  2. 2.The draft amended defence and counterclaim deemed duly filed and served subject to payment of requisite court fees
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 rule 3

Cases cited (6)

  • AAT Holdings Limited v Diamond Shields International Ltd
    [2014] eKLR
  • Central Kenya Ltd case No. 222 OF 1998
  • Isaac Awuondo vs Surgipharm Ltd & Another
    (2011) eKLR
  • MOI UNIVERSITY v VISHVA BUILDERS LIMITED
    Civil Appeal No. 296 of 2004 (unreported)
  • H.D Hasmani v. Banque Du Congo Belge
    (1938) 5 E.AC.A 89
  • Patel vs. E.A. Cargo Handling Services Ltd.
    [1974] E.A. 75
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, "Muriela Shirandula Sanya v Vincent Osundwa & 2 others [2018] KEELC 1232 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1232/eng@2018-10-23

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