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ELCAllowedNotice of Motion dated 21st January 2019 (suit at Kerugoya ELC)· [2019] KEELC 2430 (KLR)
Danson Maina Njuguna & 4 others v Beatrice Wambui Mukungi [2019] KEELC 2430 (KLR)
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#What this practically means
#Executive summary
#This was a ruling on a Notice of Motion dated 21st January 2019 in which the plaintiffs, through an affidavit of John Muturi Maina (2nd plaintiff), sought leave under Order 8 Rules 3 and 5(1) and Order 51 of the Civil Procedure Rules and Sections 1, 1A and 3A of the Civil Procedure Act to amend their plaint. They explained that the 3rd, 4th and 5th plaintiffs were deceased, that Peter Karimi Ndugutu was the registered proprietor of the suit property, and that the amendment was intended to join him so as to assist determination of the real issues. The defendant opposed through a 74-paragraph replying affidavit, asserting that as the widow of Patrick Njeru M'ruriga she was sole proprietor of L.R. No. MUTIRA/KANGAI/702, bought in 1973, and L.R. No. MUTIRA/KANGAI/701, gifted to her in 1981 by Wagateri Maria Gatandi, and denying that Ndugutu was the original owner. The court set out the amendment principles under Order 8, Halsbury's Laws of England Vol. 36(1), and the Court of Appeal decision in Central Kenya Ltd v Trust Bank & 4 others. Noting that the respondent had not identified any injury incapable of compensation in costs, the judge found the application merited, granted leave to amend the plaint as proposed, directed filing of the amended plaint within seven days, ordered the defendant to amend her defence, and awarded costs of the application to the plaintiffs.
Key legal issues
#01
Whether leave to amend the plaint should be granted
Holding
The application was merited; the court granted leave to amend the plaint as proposed in the draft amended plaint
Reasoning
The court applied Order 8 Rules 1(1) and 5 of the Civil Procedure Rules and the Central Kenya Ltd v Trust Bank principle that amendments be freely allowed. Although the respondent claimed bona fide ownership and non-disclosure, she did not show any injury not compensable by costs. Adding Peter Karimi Ndugutu would assist determination of the real issues in controversy.
p. 2
Legal principles established
#- Amendments should be freely allowed at any stage provided no prejudice or injustice incapable of compensation in costs is caused to the other party
- The purpose of amendment is to facilitate determination of the real question in controversy between the parties
Court orders
#- 1.The plaintiffs/applicants are granted leave to amend the plaint in the manner proposed in the draft amended plaint
- 2.The plaintiffs/applicants to file the amended plaint within seven (7) days from today
- 3.The defendant/respondent shall amend her defence in accordance with the Civil Procedure Rules
- 4.The plaintiff shall bear the costs of this application
- Jurisdiction invoked
- Order 8 Rule 3 and 5(1), Order 51 Civil Procedure Rules, Sections 1, 1A and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Danson Maina Njuguna & 4 others v Beatrice Wambui Mukungi [2019] KEELC 2430 (KLR)", Case Analysis (2019). Notice of Motion dated 21st January 2019 (suit at Kerugoya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2430/eng@2019-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.