Rachael Wanjiku Tonui v Enes Shitachi Wekesa & 5 others [2019] KEELC 1006 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether delay in seeking leave to amend defeats the application
The delay was reasonable and explained, and the defendants prosecuted the application with reasonable expedition once the court set it down for hearing
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.
Whether the intended counterclaim introduces a new cause of action
No - the counterclaim rests on the same facts already pleaded in the defence, explaining the defendants' possession and opposing the trespass claim
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.
Whether prejudice or delay would arise from allowing the amendment
The court was not satisfied that allowing the amendment would delay or prejudice the hearing of the suit
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.
Legal principles established
#- 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
#- 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.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.Costs of the motion to be in the cause
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act and Order 8 Rule 3 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.