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ELCAllowedNot stated in the judgment· [2019] KEELC 1704 (KLR)

Benjamin Wachia Kona v Mato Talai & 2 others [2019] KEELC 1704 (KLR)

Environment and Land Court
24 September 2019
NMN.A. Matheka
949 words in judgment
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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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The plaintiff/applicant, Benjamin Wachia Kona, moved the court by notice of motion dated 21st May 2019 under Sections 1A, 1B, 3, 3A, 18, 63(e), 75(1)(h) and 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, seeking leave to amend the plaint, with the draft amended plaint to be deemed duly filed upon payment of requisite fees. He submitted that the suit had been filed in hurry before he had collected all documents pertaining to it, that he had now received all such documents and wished to amend the plaint to reflect the true picture of the dispute, and that the respondents would suffer no prejudice. The 2nd defendant opposed, arguing that the proposed amendments did not accord with the original plaint, were unsupported by cogent or factual evidence, introduced no newly discovered facts discoverable with due diligence, and that the delay in bringing the application was inordinate, unexplained and inexcusable, causing it serious prejudice and costs. The court, N.A. Matheka J, reviewed the amendment principles from AAT Holdings Ltd v Diamond Shields International Ltd and the authorities on triable issues, and perused the proposed amended plaint. It found the amendments concerned only the description and acreage of the suit parcels, that no prejudice would be suffered, and that despite the filing date of 1st July 2019 it was in the interest of justice that all matters be placed before the court. The application was allowed as prayed, with costs of the application in the cause.

Key legal issues

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01

Whether leave to amend the plaint should be granted

Holding

The application was merited; the amendments concerned only the description and acreage of the suit parcels and caused no prejudice

Reasoning

The court perused the proposed amended plaint and found the amendments related only to the description of the suit parcels and acreage. Applying the principles in AAT Holdings Ltd v Diamond Shields International Ltd, it held the discretion to allow amendment is wide and unfettered when exercised judicially, that no prejudice would be suffered by the parties, and that it is in the interest of justice that all matters be placed before the court for a just and fair decision despite the delay in filing.

p. 2
02

Whether the delay in bringing the application defeats the amendment

Holding

No; the interest of justice favours hearing all matters notwithstanding the filing date

Reasoning

The 2nd defendant argued the delay was inordinate, unexplained and inexcusable and had caused it serious prejudice. The court acknowledged the application was filed on 1st July 2019 but held that it is in the interest of justice that all matters be brought before the court so that it can make a just and fair decision, and allowed the amendment as prayed.

p. 2

Legal principles established

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  • The discretion of a trial court to allow amendments of a plaint is wide and unfettered but must be exercised judicially on defined principles

Court orders

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  1. 1.Leave granted to amend the plaint as prayed
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 18, 63(e), 75(1)(h), 79G
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (6)

  • AAT Holdings Limited v Diamond Shields International Ltd
    [2014] eKLR
  • Central Kenya Ltd Case No. 222 of 1998
  • Isaac Awuondo vs Surgipharm Ltd & Another
    (2011) eKLR
  • Moi University v Vishva Builders Limited
    Civil Appeal No. 296 of 2004 (unreported)
  • H.D Hasmani v. Banque Du Congo Belge
    (1938) 5 E.A.C.A 89
  • Patel vs. E.A. Cargo Handling Services Ltd.
    [1974] E.A. 75
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 18, 63(e), 75(1)(h) and 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules

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, "Benjamin Wachia Kona v Mato Talai & 2 others [2019] KEELC 1704 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1704/eng@2019-09-24

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