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ELCAllowedNot stated in the judgment (ELC suit filed in 2016)· [2019] KEELC 1773 (KLR)

Felix Mecha Nyakundi & 2 others v National Social Security Fund & another [2019] KEELC 1773 (KLR)

Environment and Land Court
18 September 2019
BEB M Eboso
1,718 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 a defendant to amend its defence mid-case and add new parties, confirming amendments are freely allowed before hearing starts if no one is unfairly prejudiced.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (B M Eboso J) determined a notice of motion dated 21 December 2018 by the 1st defendant seeking leave to amend its defence and counter-claim so as to join additional parties as defendants in the counter-claim. The applicant contended that the proposed additional defendants were key players in the transaction giving rise to the suit, having entered a tenant purchase agreement with the 1st defendant over the suit properties and a subsequent sale agreement with the plaintiffs. The plaintiffs and 2nd defendant opposed, arguing no cause of action was disclosed against the proposed parties, that a separate suit should be filed, that the joinder would cause inordinate delay and introduce a new cause of action, and that the 1st defendant's remedy lay in enforcing the professional undertaking given by the 2nd defendant. The court framed two issues: whether the criteria for granting leave to amend were met, and whether the intended defendants were necessary parties. Applying Order 8 rule 3 of the Civil Procedure Rules and the jurisprudence on amendments, the court held that hearing had not commenced, no new claim against existing parties was introduced, and no injustice to the respondents had been demonstrated. On the second issue, since the intended defendants allegedly procured transfers using purportedly forged undertakings, the fraud question could not be resolved without them. The application was allowed with leave to amend within 14 days, service by newspaper notice, and costs in the cause.

Key legal issues

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01

Whether leave to amend pleadings and join additional parties should be granted

Holding

Leave was granted because the amendments were necessary for determining the real questions in controversy and the intended defendants were necessary parties, with no demonstrated injustice to the existing parties

Reasoning

The court exercised its discretion under Order 8 rule 3 of the Civil Procedure Rules. The suit was filed in 2016 and hearing had not commenced, so there was no undue delay. The amendments did not introduce a new claim against existing parties but sought joinder of persons alleged to have procured transfers by forged undertakings. The respondents did not demonstrate the injustice they would suffer. The fraud question could not be fully answered without the intended defendants being party to the suit.

p. 2
02

Whether the intended additional defendants are necessary parties

Holding

They are necessary parties because the question of fraud in procuring transfers cannot be fully determined without them

Reasoning

The applicant contended the intended defendants procured executed transfer instruments by presenting purported (forged) undertakings, and sought cancellation of the resultant transfers. Since the alleged fraud involved these persons directly, complete adjudication of all questions in the dispute required their presence. The court found them necessary for the effectual and complete adjudication of the key questions.

p. 2

Legal principles established

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  • Amendments should be allowed at any stage provided they do not result in prejudice or injustice which cannot be compensated by costs
  • The criteria for allowing amendments include necessity for determining the real questions in the suit, avoiding multiplicity of suits, absence of undue delay, no new or inconsistent cause of action, and no injustice to the other party

Court orders

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  1. 1.The 1st defendant is allowed to amend its defence and counterclaim in terms of the draft amended defence and counter-claim annexed to the application within 14 days
  2. 2.The applicant is granted leave to effect service of summonses upon the joined parties through a prominent notice in either the Daily Nation or the Standard Newspaper
  3. 3.Costs of the application shall be in the cause and shall await determination of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 rule 3

Cases cited (7)

  • Central Kenya Ltd vs Trust Bank & 4 others
    Civil Appeal No. 222 of 1998
  • Central Kenya Limited v Trust Bank Ltd
    (2000)
  • Evanson Mbuthia Gitahi vs Priscilla Wanjiku Muruthi
    ELC No. 812 of 2013
  • Eastern Bakery vs Castelino
    1958 E.A 461
  • Tulip Properties Ltd vs Mohammed Koriow and Others
    ELC No. 1403 of 2007
  • John Mulwa Kang’aatu vs Pan African Insurance Co. Ltd
    [2015] eKLR
  • Ochieng and 2 others v First National Bank of Chicago
    Civil Appeal No. 149 of 1991
Jurisdiction invoked
Order 8 rule 3 of the Civil Procedure Rules (discretionary jurisdiction to allow amendment of pleadings and joinder of parties)

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, "Felix Mecha Nyakundi & 2 others v National Social Security Fund & another [2019] KEELC 1773 (KLR)", Case Analysis (2019). Not stated in the judgment (ELC suit filed in 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1773/eng@2019-09-18

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