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ELCPartially AllowedNot stated in judgment (application dated 2/8/2018 filed 3/8/2018)· [2019] KEELC 1006 (KLR)

Rachael Wanjiku Tonui v Enes Shitachi Wekesa & 5 others [2019] KEELC 1006 (KLR)

Environment and Land Court
4 November 2019
1,940 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 defendants to add a counterclaim late, because getting legal authority over a deceased relative's estate reasonably explained the delay.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (Mwangi Njoroge, J) on a notice of motion dated 2/8/2018 in which the defendants sought leave to amend their defence to plead a counterclaim, and to have the amended defence and counterclaim deemed duly filed upon payment of filing fees, under Section 3A of the Civil Procedure Act and Order 8 Rule 3 of the Civil Procedure Rules 2010. The plaintiff's suit sought eviction from land parcel Trans-Nzoia/Gidea/71, a permanent injunction and general damages for trespass. The defendants, beneficiaries of the late Jackson Wekesa Namisiko, who was allotted the land by the Settlement Fund Trustee in 1983 but died on 30/7/2013 before obtaining a title, needed a grant of letters of administration ad litem (issued 16/7/2018) before they could counterclaim for a declaration that the estate owns the land and for cancellation of the plaintiff's title. The plaintiff opposed, citing belatedness, a new cause of action and non-compliance with the Civil Procedure Rules, relying on Ochieng v First National Bank of Chicago, Omwoyo v African Highlands and Produce Co. Ltd and Kassam v Bank of Baroda. The court held the delay reasonable and explained, and that the counterclaim relied on the same facts as the existing defence, introducing no new cause of action and occasioning no prejudice. The application was allowed in terms of prayers (1) and (2), with costs in the cause.

Key legal issues

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01

Whether delay in seeking leave to amend defeats the application

Holding

The delay was reasonable and explained, and the defendants prosecuted the application with reasonable expedition once the court set it down for hearing

Reasoning

The main suit was filed on 1/3/2018 and the application on 3/8/2018. The defendants had needed time to obtain a grant of letters of administration ad litem from the High Court at Kitale, which involved proceedings in a different court. No application to strike out for want of prosecution was made between filing and the hearing date, and the defendants complied with the court's orders.

p. 2
02

Whether the intended counterclaim introduces a new cause of action

Holding

No - the counterclaim rests on the same facts already pleaded in the defence, explaining the defendants' possession and opposing the trespass claim

Reasoning

The plaintiff claims title and eviction; the defendants are in possession and are entitled to explain how they came into possession. The grounds pleaded in the defence are the same as those in the counterclaim. Evicting them without hearing the counterclaim would terminate their possession without an opportunity to lay claim on the land. The defence had not been challenged by any striking-out application.

p. 2
03

Whether prejudice or delay would arise from allowing the amendment

Holding

The court was not satisfied that allowing the amendment would delay or prejudice the hearing of the suit

Reasoning

The plaintiff's objections rested on belatedness, a new cause of action and non-compliance with the Civil Procedure Rules. The court found no wrongdoing amounting to turning the defence into a gamble at the opponent's expense, and amendments are intended to enable determination of the true and substantive merits.

p. 2

Legal principles established

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  • The power to amend pleadings may be exercised at any stage of the proceedings and late amendments should be allowed if made in good faith, provided costs can compensate the other side
  • A proposed amendment does not introduce a new cause of action where the facts relied on in the counterclaim are the same facts relied on in the existing defence

Court orders

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  1. 1.Leave granted to the defendants to amend their defence to plead a counterclaim in terms of the amended defence and counterclaim annexed to the supporting affidavit
  2. 2.The amended defence and counterclaim annexed to the supporting affidavit deemed as duly filed and served upon payment of the requisite court filing fees
  3. 3.Costs of the motion to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 1A
  • Civil Procedure Rules 2010Order 8 Rule 3
  • Civil Procedure Rules 2010Order 8 Rule 5
  • Civil Procedure Rules 2010Order 8 Rule 2

Cases cited (3)

  • Ochieng and Others -vs- the First National Bank of Chicago
  • Omwoyo -vs- African Highlands and Produce Co. Ltd
    [2002] 1 KLR
  • Kassam -vs- Bank of Baroda
    [2002] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 8 Rule 3 of the Civil Procedure Rules 2010

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, "Rachael Wanjiku Tonui v Enes Shitachi Wekesa & 5 others [2019] KEELC 1006 (KLR)", Case Analysis (2019). Not stated in judgment (application dated 2/8/2018 filed 3/8/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1006/eng@2019-11-04

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