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ELCAllowedNot stated in judgment· [2018] KEELC 2356 (KLR)

Raju Panachand Shah v County Government of Kakamega & another [2018] KEELC 2356 (KLR)

Environment and Land Court
12 July 2018
NMN.A. MATHEKA
1,034 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 a defendant to amend its defence and counterclaim over disputed public land, confirming amendments are freely permitted when no real prejudice results.

What this practically means

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Executive summary

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The 2nd defendant applied by notice of motion dated 2nd August 2017, under Order 8 rule 3 and Order 51 rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act, for leave to amend its defence dated 18th December 2015 to include a draft defence and counter claim. The proposed counter claim sought recovery of public land, such that if successful, the certificate of lease over KAKAMEGA MUNICIPALITY BLOCK 4/465 held by the plaintiff would stand revoked and the land reverted to the Kakamega County Assembly. The plaintiff opposed, arguing that the National Land Commission is the only constitutionally mandated body to manage, protect and recover public land, and that since the Commission was not party to the proceedings, allowing the amendment would usurp its mandate. The court, applying the principles in the Central Kenya Ltd case as cited in AAT Holdings Limited v Diamond Shields International Ltd, held that the discretion to allow amendments is wide and unfettered but must be exercised judicially. Relying also on Isaac Awuondo vs Surgipharm Ltd & Another and the Moi University v Vishva Builders line of authority, it found the defence raised bona fide triable issues. The court held the amendment necessary to determine all real questions in controversy, including recovery of public land, and that the plaintiff would suffer no real prejudice or injustice. Allowing the application, it granted leave to amend as prayed, with costs of the application in the cause.

Key legal issues

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01

Whether to grant leave to amend the defence to include a counter claim for recovery of public land

Holding

The amendment was allowed as it was necessary to determine the real questions in controversy and caused no prejudice to the plaintiff

Reasoning

The court applied the settled principles from the Central Kenya Ltd case that amendments should be freely allowed where necessary to determine the real question in controversy, avoid multiplicity of suits, introduce no inconsistent cause of action, affect no vested rights and occasion no uncompensatable prejudice. The counter claim pursued recovery of public land, and the plaintiff could point to no real prejudice or injustice.

p. 2
02

Whether the amendment would usurp the mandate of the National Land Commission

Holding

The objection that the amendment encroached on the NLC's mandate did not prevail; the court allowed the amendment to adjudicate over all real questions including recovery of public land

Reasoning

The respondent argued that only the National Land Commission is mandated to manage, protect and recover public land, and it was not party to the proceedings. The court nonetheless found the amendment necessary for adjudicating all real questions and noted no prejudice would be suffered, allowing the application as prayed.

p. 2

Legal principles established

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  • The discretion to allow amendment of a defence is wide and unfettered but must be exercised judicially on defined principles to enable the court to determine all real questions in controversy
  • A defence raising even one bona fide triable issue must be allowed to go to trial

Court orders

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  1. 1.Leave granted to the 2nd defendant to amend its defence dated 18th December 2015 in terms of the draft defence and counter claim annexed to the supporting affidavit
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 rule 3
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure Actsection 1A
  • Civil Procedure Actsection 1B
  • Civil Procedure Actsection 3A

Cases cited (7)

  • Jane Muthoni Mungai & Another vs. Texcal House Service Station
  • 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 and Order 51 rule 1 of the Civil Procedure Rules and sections 1A, 1B & 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, "Raju Panachand Shah v County Government of Kakamega & another [2018] KEELC 2356 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2356/eng@2018-07-12

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