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ELCPartially AllowedGichugu Senior Resident Magistrate's Court Civil Case No. 5 of 2016 (consolidated suit; Notice of Motion dated 3rd July 2017)· [2018] KEELC 4657 (KLR)

Millicent Wairimu & another v Johnson Nyaga Maina & 2 others [2018] KEELC 4657 (KLR)

High Court of Kenya (Environment and Land Division, Kerugoya)
26 January 2018
1,440 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court allowed land plaintiffs to add fraud claims and the Land Registrar to their case, but made them pay the defendant's costs for the delay.

What this practically means

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Executive summary

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This ruling by B.N. Olao J at Kerugoya determined the plaintiffs' Notice of Motion dated 3rd July 2017 seeking leave to amend their plaint under Section 100 of the Civil Procedure Act and Order 8 Rules 3 and 5 of the Civil Procedure Rules. The plaintiffs sought to enjoin the Chief Land Registrar as a defendant in place of the Gichugu Land Control Board and to plead particulars of fraud against the 1st defendant regarding the acquisition and sub-division of land parcel No. NGARIAMA/NGIRIAMBU/1313. The 1st defendant opposed, arguing duplicity (a similar application of 31st October 2016 was pending) and urging judicial exercise of discretion. The court noted the earlier application had been withdrawn. Applying Eastern Bakery v Castelino and Central Kenya Ltd v Trust Bank Ltd, the court held that amendments should be freely allowed before trial where no prejudice beyond compensable costs would arise; the suit was at an early stage and no prejudice was alleged. The application was allowed: the amended plaint was deemed filed and served, the 1st defendant had 14 days to amend his defence, and the 2nd and 3rd defendants were to be served and file defences. Costs of the application were awarded to the 1st defendant, payable by the plaintiffs. The court also directed three contemnors from an earlier contempt ruling to appear on 1st February 2018, subject to any stay order being filed by then.

Key legal issues

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01

Leave to amend pleadings before trial

Holding

Amendment allowed because the suit had not commenced trial, no prejudice was alleged, and the amendments were necessary to determine the real question in dispute

Reasoning

The court applied Section 100 of the Civil Procedure Act and Order 8 Rules 3 and 5, together with the principles in Eastern Bakery v Castelino and Central Kenya Ltd v Trust Bank Ltd, holding amendments should be freely allowed at an early stage absent prejudice not compensable in costs. The proposed joinder of the Chief Land Registrar and particulars of fraud went to the real issue of title to the suit property.

p. 3
02

Prior similar application as ground of opposition

Holding

The objection failed because the earlier application of 31st October 2016 had been withdrawn

Reasoning

The 1st defendant argued the application was duplicative of one filed on 31st October 2016. The 1st plaintiff, in a supplementary affidavit dated 12th September 2017, confirmed that earlier application had been withdrawn, removing that objection.

p. 2
03

Attendance of contemnors for sentencing or further orders

Holding

The defendants found in contempt in the ruling of 21st April 2017 were to be served and to appear for appropriate orders absent a stay from the Superior Court

Reasoning

Although a notice of appeal was filed on 21st April 2017 against the contempt ruling, there was no evidence the appeal was filed or its result, and no stay order from the Superior Court was on record, so the court directed the contemnors to appear. Counsel then indicated a consent stay order existed; the court directed it be filed before the mention date.

p. 3

Legal principles established

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  • The Court has wide discretion to allow amendment of pleadings at any stage so long as no prejudice is caused that cannot be atoned for in costs
  • Amendments necessary for determining the real question in controversy should be freely allowed; mere delay is not a ground for refusal unless it prejudices the opposite party beyond monetary compensation

Court orders

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  1. 1.The draft amended plaint annexed to the application be treated as the amended plaint and deemed as having been duly filed and served upon the 1st defendant
  2. 2.The 1st defendant is at liberty to amend his defence within 14 days of this ruling
  3. 3.The 2nd and 3rd defendant be served with the amended plaint within 14 days from the date of this ruling and to file their defences within 14 days of service
  4. 4.The plaintiffs will meet the 1st defendant's costs occasioned by this application
  5. 5.Dorothy Njoki Njoka, Emily Wanja Njoka and Philis Wangui Njoka be served by the process server of the Court to appear on 1st February 2018 for appropriate orders in the contempt matter
  6. 6.Any order of stay on the contempt be filed before 1st February 2018 when the matter will be mentioned for further orders

Authorities

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Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure ActSections 1A, 2A and 3A
  • Civil Procedure RulesOrder 8 Rule 3(1)
  • Civil Procedure RulesOrder 8 Rule 5(1)

Cases cited (2)

  • Eastern Bakery vs Castelino
    1958 E.A 461
  • Central Kenya Ltd vs Trust Bank Ltd & Others
    C.A Civil Appeal No. 222 of 1998 (2000 eKLR)
Jurisdiction invoked
Section 100 of the Civil Procedure Act, Order 8 Rules 3 and 5 of the Civil Procedure Rules, and Sections 1A, 2A and 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, "Millicent Wairimu & another v Johnson Nyaga Maina & 2 others [2018] KEELC 4657 (KLR)", Case Analysis (2018). Gichugu Senior Resident Magistrate's Court Civil Case No. 5 of 2016 (consolidated suit; Notice of Motion dated 3rd July 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4657/eng@2018-01-26

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