Vincent Gatimu Gitaku v Charity Wangechi Ngari [2019] KEELC 824 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a land claimant to increase his claim from 0.6 to 1 acre, ruling the amendment changed no one's rights.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to amend the Originating Summons should be granted
Leave granted; the amendment merely alters the acreage claimed from 0.6 to 1 acre of the same parcel and does not change the character of the action.
The court applied Order 8 Rule 3 CPR and the principles in Central Kenya Ltd v Trust Bank and Eastern Bakery v Castelino. It found that the amendment arises from the respondent's changed position after the confirmed grant in the succession cause was set aside, and that the applicant only seeks to alter the acreage of land claimed from the same parcel number. The respondent would not be prejudiced as she may respond to the amendment.
Whether the amendment would deprive the defendant of her pleaded defence of limitation
No prejudice found; the defence of limitation remains available and the respondent can respond to the amendment.
The respondent's preliminary objection was that the amendment would deny her the legitimate defence of limitation pleaded over 10 years earlier. The court, examining the replying affidavit sworn on 20th August 2008, found the amendment did not change the action into one of substantially different character, and that the respondent retains the opportunity to respond to the amendment if she so desires.
Legal principles established
#- A party may amend pleadings at any stage provided there is no undue delay, no new or inconsistent cause of action, no vested interest or accrued right affected, and no injustice to the other side.
- The court will refuse leave to amend where the amendment would change the action into one of a substantially different character or would deprive the opposite party of a defence of limitation accrued since the issue of the writ.
Court orders
#- 1.The plaintiff/applicant is granted leave to file the Originating Summons in terms of the draft annexed to the Notice of Motion dated 1st March 2019 within 7 days
- 2.The defendant/respondent is granted corresponding leave to file a further affidavit in response within 14 days from the date of service of the amended Originating Summons
- 3.The plaintiff shall bear the costs of the application in any event
- Jurisdiction invoked
- Order 8 Rule 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vincent Gatimu Gitaku v Charity Wangechi Ngari [2019] KEELC 824 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/824/eng@2019-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.