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ELCAllowedNot stated in the judgment· [2018] KEELC 3255 (KLR)

Peter Andera Masakhalia v Jonathan Mahindu Anzona & 4 others [2018] KEELC 3255 (KLR)

Environment and Land Court (implied by land dispute; court not expressly named)
16 May 2018
NMN.A. Matheka
1,185 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a landowner to update his lawsuit to claim losses that happened after filing, confirming amendments are freely allowed when no one is prejudiced.

What this practically means

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Executive summary

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The plaintiff/applicant brought a notice of motion dated 8th November 2017 under Order 8 rules 3 and 5 of the Civil Procedure Rules 2010 and Section 3A of the Civil Procedure Act, seeking leave to amend his plaint to include special damages, to have the filed amended plaint deemed properly filed on payment of court fees, and for costs to be in the cause. The suit, filed on 27th January 2016, sought to prevent the 3rd defendant from digging a public road on the plaintiff's suit land. On 24th March 2016 the 3rd defendant allegedly dug the road in violation of a court order, destroying trees and food crops, and the plaintiff sought to plead these losses as special damages, supported by photographs and valuation reports. The respondents opposed, arguing the amendment would introduce a cause of action out of time, that no leave had been sought, and that the application was misconceived, frivolous, vexatious and an abuse of process. Applying the principles from AAT Holdings v Diamond Shields (as drawn from the Central Kenya Ltd case) and other Court of Appeal authorities, Judge N.A. Matheka held that the damages were non-existent when the suit was filed, that the time for amendment had not expired, and that the amendment would bring the real issues in controversy before the court without prejudice to the defendants. The application was granted as prayed, with costs in the cause.

Key legal issues

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01

Whether leave to amend the plaint to introduce special damages arising after filing should be granted

Holding

Leave granted; the damages were unknown/non-existent at filing, no prejudice would be suffered, and amendments are intended to bring the real issues in controversy before the court.

Reasoning

The court found that the road was dug and trees and food crops destroyed on 24th March 2016, after the suit was filed, so the special damages could not have been pleaded initially. The amendments would bring the real issues in controversy for determination on their true and substantive merits. The time for amendment had not expired, no prejudice would be occasioned to the defendants, and the application was in the interest of justice.

p. 1

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.
  • Amendments should generally be freely allowed where there is no prejudice to the other side.

Court orders

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  1. 1.The plaintiff/applicant granted leave to amend his plaint as prayed
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 8 rules 3 and 5
  • Civil Procedure ActSection 3A
  • Constitution of KenyaSection 159(d) (as cited by the applicant)

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.A.C.A 89
  • Patel vs. E.A. Cargo Handling Services Ltd
    [1974] E.A. 75
Jurisdiction invoked
Order 8 rules 3 and 5 of the Civil Procedure Rules 2010 and Section 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, "Peter Andera Masakhalia v Jonathan Mahindu Anzona & 4 others [2018] KEELC 3255 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3255/eng@2018-05-16

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