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ELCDismissedNot stated in the judgment extract· [2018] KEELC 1248 (KLR)

Eliab Imbiakha Musha v Rodgers Orata Kweyu & 3 others [2018] KEELC 1248 (KLR)

Environment and Land Court
24 October 2018
NMN. A. Matheka
1,007 words in judgment
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The bottom line

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Kenya's Environment and Land Court in Kakamega refused a defendant's late attempt to add a land access counterclaim, calling it a delay tactic.

What this practically means

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Executive summary

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The first defendant, by a notice of motion dated 20th August 2018 brought under section 3A of the Civil Procedure Act and Order 8 rule 3 of the Civil Procedure Rules, sought leave to amend his statement of defence dated 27th February 2015 to include a counterclaim concerning the closure of his road of access and alleged boundary interference and trespass by the plaintiff. He argued that the interference occurred after he filed his defence, so the counterclaim could not have been pleaded earlier, and that the boundary and access issue had been determined by due process. The respondent opposed, contending that the applicant had already testified, the matter was in its final stage with only one witness remaining, and the application was a delaying tactic and abuse of process. The court reviewed the principles on amendment of pleadings from AAT Holdings Limited v Diamond Shields International Ltd and the triable-issue authorities. It noted the matter was part heard, that the Land Registrar's evidence suggested the road access issue remained unresolved, and that the issue had not been pleaded by either side. However, it found the endless applications by the litigants frivolous and an abuse of the court process, observed that only the district surveyor was left to testify, and dismissed the application with costs. Judgment was delivered at Kakamega on 24th October 2018 by N.A. Matheka J.

Key legal issues

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01

Late amendment of pleadings to introduce a counterclaim in a part-heard suit

Holding

The amendment was refused as frivolous, an abuse of process and belated, since the road access issue had not been pleaded by either side and the matter was at defence hearing

Reasoning

The court set out the principles governing amendments from AAT Holdings Ltd v Diamond Shields International Ltd, including necessity for determining the real question, avoiding multiplicity of suits, no undue delay, no inconsistent cause of action and no prejudice. Despite observing that the access issue had not been pleaded and must be raised 'now or never', the court held the endless applications frivolous and dismissed the application with costs.

p. 2

Legal principles established

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  • The discretion of a trial court to allow amendments is wide and unfettered but must be exercised judicially on defined principles

Court orders

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  1. 1.The application dated 20th August 2018 seeking leave to amend the defence to include a counterclaim is dismissed
  2. 2.Costs of the application awarded to the plaintiff/respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • 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.A.C.A 89
  • Patel vs. E.A. Cargo Handling Services Ltd.
    [1974] E.A. 75
Jurisdiction invoked
Section 3A of the Civil Procedure Act and 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, "Eliab Imbiakha Musha v Rodgers Orata Kweyu & 3 others [2018] KEELC 1248 (KLR)", Case Analysis (2018). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1248/eng@2018-10-24

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