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ELCAllowed· [2018] KEELC 4816 (KLR)

Julius Onesmus Mwangi & others v Administrators of the Estate of Letoire Ole Ntirori (Deceased) & others [2018] KEELC 4816 (KLR)

Environment and Land Court
17 January 2018
COChristine Ochieng
1,166 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 buyers to amend their lawsuit to name every plot owner, confirming that procedural mistakes can be fixed rather than sink a case.

What this practically means

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Executive summary

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This Environment and Land Court at Kajiado ruling by Christine Ochienog J (as printed) determined the Plaintiffs' Notice of Motion dated 31st May 2017, brought under Order 8 Rules 3 and 5 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking leave to amend the Plaint to include the 3rd to 23rd Plaintiffs as parties, and to plead demolition of structures on the suit properties. The Plaintiffs, through their advocate Migui Macharia Mungai, argued that the suit was not representative and each plot owner should personally pursue their claims, that the amendment would narrow the issues, and that no prejudice would be suffered by the Defendants. The Defendants opposed, relying on a preliminary objection dated 4th November 2015 that the suit offended Order 1 Rule 3 and that the court lacked jurisdiction, citing the Supreme Court's decision in Samuel Kamau Macharia. The court framed one issue: whether leave to amend should be granted. Relying on Order 1 Rule 1 and Order 8 Rule 5, and on Article 159(2)(d) of the Constitution and Section 19(1) of the Environment and Land Court Act, the court held the amendment was merited, would cure the defect of joining the deceased 3rd Defendant, and that the trespass, injunction and eviction claims fell within ELC jurisdiction. The application was allowed; the amended Plaint was to be filed and served within 14 days, Defendants granted 14 days to amend Defences, with costs in the cause.

Key legal issues

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01

Whether leave should be granted to amend the Plaint to enjoin all plot owners as plaintiffs

Holding

Leave granted; the amendment identifies each plot owner and narrows the issues, and the defendants suffer no prejudice.

Reasoning

Order 8 Rule 5 permits amendment for determining the real question in controversy, and Order 1 Rule 1 allows joinder of persons claiming relief from the same act or transaction. The court, guided by Article 159(2)(d) and Section 19(1) of the ELC Act against undue regard to technicalities, found the amendment merited and cured the defect arising from the deceased 3rd Defendant.

p. 3
02

Whether the ELC has jurisdiction over the suit

Holding

Yes; the suit concerns trespass, permanent injunction and eviction, which fall within the ELC's jurisdiction under Section 13 of the ELC Act.

Reasoning

The court noted Section 13(1) confers original and appellate jurisdiction over disputes under Article 162(2)(b), and Section 13(2)(c) and (d) cover land administration and interests in land. The prayers for permanent injunction and eviction fell squarely within that jurisdiction, answering the defendants' preliminary objection on jurisdiction.

p. 2

Legal principles established

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  • A defect arising from joining a deceased party rather than its administrators does not render a suit fatally defective where amendment can cure it, having regard to Article 159(2)(d) and Section 19(1) of the ELC Act.

Court orders

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  1. 1.Leave granted to the Plaintiffs to amend the Plaint so as to include the 3rd to the 23rd Plaintiff
  2. 2.Plaintiffs directed to file and serve the amended Plaint within fourteen (14) days
  3. 3.Defendants granted leave of fourteen (14) days to file and serve amended Defences if need be
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3 & 5
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 1 Rule 1
  • Civil Procedure RulesOrder 1 Rule 3
  • Environment and Land Court ActSection 13(1), 13(2)(c) & (d)
  • Environment and Land Court ActSection 19(1)
  • Constitution of KenyaArticle 162(2)(b); Article 159(2)(d)

Cases cited (2)

  • Bosire Ogeto Vs Royal Media Services Limited
    Civil Suit No. 292 of 2013
  • Samuel Kamau Macharia and Anor vs. Kenya Commercial Bank Limited and 2 others
    Application No. 2 of 2011 (eKLR)
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13(1) of the Environment and Land Court 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, "Julius Onesmus Mwangi & others v Administrators of the Estate of Letoire Ole Ntirori (Deceased) & others [2018] KEELC 4816 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4816/eng@2018-01-17

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