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ELCPartially AllowedNot stated in judgment (suit filed 20 May 2014)· [2019] KEELC 1112 (KLR)

Jane Wangari Muraya & 2 others v Kenya Commercial Bank Ltd & another [2019] KEELC 1112 (KLR)

Environment and Land Court
30 October 2019
1,032 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Mombasa (Munyao Sila, Judge) on a Notice of Motion dated 10 July 2019 in which the plaintiffs sought leave to further amend their plaint. The underlying suit was filed on 20 May 2014 against Kenya Commercial Bank Limited, seeking to stop an advertised auction of the plaintiff's land offered as security for facilities advanced to Jador Enterprises Limited. The bank nonetheless sold the property on 21 May 2014 to Shallom Homes Limited, which was later enjoined as 2nd defendant. An application for injunction and a contempt application were both dismissed on 27 May 2015, and Dorcas Gathoni and Jador Enterprises Limited were joined as co-plaintiffs by a ruling of 30 November 2017. By the application of 10 July 2019, the plaintiffs, having reflected that the remedy of an aggrieved chargor lies in damages against the seller, sought to amend the plaint to add a prayer for damages against the bank and to remove the 2nd defendant (the auction purchaser) from the proceedings. The application was unopposed save for a costs demand by the 2nd defendant. The court held that amendments are freely allowed absent prejudice, found no prejudice to the bank, and granted leave to amend, thereby removing the 2nd defendant from the suit. The plaintiffs conceded the 2nd defendant's costs of the suit, which the court awarded, but declined to award costs of the application since the application was the only vehicle by which the 2nd defendant could be removed. The application was allowed with no orders as to its own costs.

Key legal issues

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01

Whether leave to amend the plaint should be granted

Holding

Leave to amend was granted as no prejudice would be caused to the remaining defendant, who would retain an opportunity to amend its defence.

Reasoning

The court applied the settled principle that amendments to pleadings are generally allowed freely provided no prejudice results to the other side. Here the bank, as sole remaining defendant, could still amend its defence and plead matters in its defence. The removal of the 2nd defendant was a matter within the plaintiffs' discretion as masters of their own suit, and the court would not stand in their way where they perceived no cause of action against that party.

p. 2
02

Whether the plaintiffs may withdraw the suit against the 2nd defendant

Holding

The choice to remove the 2nd defendant was the plaintiffs' own and the court would not prevent it.

Reasoning

The court regarded the plaintiffs as entitled to elect against whom they pursue their claims. Having reflected that the proper remedy for a chargor aggrieved by an auction is damages against the seller, they saw no cause of action against the auction purchaser. The court acceded to that election, resulting in the 2nd defendant exiting the proceedings with the costs of the suit.

p. 2
03

Costs of the application and of the suit as against the 2nd defendant

Holding

Costs of the suit were conceded to the 2nd defendant, but no costs were awarded for the application itself.

Reasoning

The plaintiffs conceded the 2nd defendant's costs of the suit, which the court accepted. On the application, the court reasoned that the 2nd defendant could only be removed from the proceedings through this application, so it was not entitled to costs of that application. The application therefore carried no costs order.

p. 2

Legal principles established

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  • The remedy of a chargor aggrieved by an auction sale lies in damages against the seller (chargee).
  • The court is generally liberal in allowing amendment of pleadings so long as no prejudice is caused to the other parties.

Court orders

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  1. 1.Leave granted to amend the plaint as per the annexed further amended plaint
  2. 2.The 2nd defendant, Shallom Homes Limited, ceases to be a party to the proceedings
  3. 3.Costs of the withdrawn suit awarded to the 2nd defendant
  4. 4.No orders as to costs in respect of the application

Authorities

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Legislation

  • Civil Procedure ActNot specifically cited
  • Civil Procedure RulesNot specifically cited
Jurisdiction invoked
Inherent powers of the court to allow amendment of pleadings (Civil Procedure Act and Rules invoked generally; no specific article quoted in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jane Wangari Muraya & 2 others v Kenya Commercial Bank Ltd & another [2019] KEELC 1112 (KLR)", Case Analysis (2019). Not stated in judgment (suit filed 20 May 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1112/eng@2019-10-30

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