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ELCAllowedNot stated in judgment· [2018] KEELC 1730 (KLR)

David Keli Kiilu Nelson N. Ogombe (suing as the registered trustees of the Royal Agricultural Society of Kenya) v Masinde Muliro University of Science and Technology & another [2018] KEELC 1730 (KLR)

Environment and Land Court
25 September 2018
NMN.A. Matheka
1,078 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed land dispute plaintiffs to add new parties to their decade-old case because joining everyone helps the court decide fairly.

What this practically means

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Executive summary

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The plaintiffs/applicants, by a notice of motion dated 4th June 2018, sought leave to further amend their further amended plaint and that costs be in the cause. The suit, filed in 2008, concerns parcel Kakamega Municipality/Block III/114 measuring approximately 6.813 hectares. The plaintiffs had earlier, pursuant to leave granted on 11th October 2011, joined the Land Registrar through the office of the Honourable Attorney General. That office filed a statement of defence served on 9th April 2018 raising new facts, and the 2nd defendant's defence indicated that the Church Commissioners for Kenya purportedly hold title to the suit premises. The applicants sought to join the Church Commissioners and other intended parties to match the claim and place the correct evidence on record. The 1st respondent opposed, arguing the plaintiffs had long known of the registration of the parcel in the name of the Church Commissioners for Kenya and of the alleged allottees (intended defendants Nos. 3-11), that no new matter was raised by the 2nd defendant's defence, and that delay, coupled with injunctive orders restraining the 1st defendant from utilizing the suit property since its 2007 allocation, was prejudicial. The 2nd respondent did not oppose. The court applied the principles from Central Kenya Ltd as cited in AAT Holdings Ltd v Diamond Shields International Ltd: amendments are to be allowed where necessary for determining the real question in controversy, to avoid multiplicity of suits, absent undue delay, new or inconsistent causes of action, affected vested rights, or uncompensatable prejudice. Finding no prejudice and that all matters should be before the court for a just determination, the judge granted leave to amend as prayed, with costs in the cause.

Key legal issues

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01

Principles governing amendment of pleadings

Holding

Amendments should be allowed where necessary to determine the real question in controversy, to avoid multiplicity of suits, provided there is no undue delay, no new or inconsistent cause of action, no vested right affected, and no uncompensatable prejudice.

Reasoning

The court adopted the principles set out by the Court of Appeal in Central Kenya Ltd as cited in AAT Holdings Ltd v Diamond Shields International Ltd. It found no prejudice would be suffered by the parties, that the amendment was necessary to bring in the Church Commissioners for Kenya who purportedly hold title to the suit property, and that all matters ought to be before the court for a just decision.

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 on defined principles.

Court orders

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  1. 1.Leave granted to the plaintiff/applicants to further amend the further amended plaint in terms of the annexed draft
  2. 2.Costs of the application to be in the cause

Authorities

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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
Inherent power of the trial court to allow amendment of pleadings (civil procedure); no specific constitutional/statutory provision cited

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 Keli Kiilu Nelson N. Ogombe (suing as the registered trustees of the Royal Agricultural Society of Kenya) v Masinde Muliro University of Science and Technology & another [2018] KEELC 1730 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1730/eng@2018-09-25

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