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ELCPartially AllowedSuit number not stated in the judgment; the application is the plaintiff's Notice of Motion dated 24/7/2018· [2019] KEELC 2600 (KLR)

Victoria Naiyanoi Kiminta v Gladys Kiminta Prinsloo [2019] KEELC 2600 (KLR)

Environment and Land Court
3 July 2019
BEB M Eboso
2,350 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Nairobi land court allowed a plaintiff to re-open her case and amend her claim, but refused to erase earlier evidence and made her pay costs.

What this practically means

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Executive summary

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The plaintiff, whose case had been heard and closed on 14/12/2017 in a suit over jointly owned property seeking sale of the property, division of sale proceeds and a share of rental income, brought a notice of motion dated 24/7/2018 seeking to set aside the proceedings of 5/1/2018, to re-open her case and lead a valuation report and receipts through an additional witness, and for leave to amend her plaint. The defendant opposed, describing the application as an afterthought; the valuation report had been procured after closure of the plaintiff's case and the receipts related to service charges on a plot in Embakasi owned by the plaintiff's son. The court framed two issues: the criteria for re-opening a case and receiving additional evidence, and the criteria for leave to amend pleadings. Noting that neither the Civil Procedure Rules nor the Evidence Act (save section 146(4) and Order 18 Rule 10) provides a clear framework, the court adopted six Commonwealth principles drawn from Ladd v Marshall, Mohamed Abdi Mohamud and Samuel Kiti Lewa. It found the criteria met: the defence had not yet testified, so no prejudice would arise, and the valuation evidence would probably bear on the effectual adjudication of the dispute. Leave to amend was also granted under Order 8 Rule 3(1), applying Eastern Bakery v Castellino, since the amendments (market value of the suit property and reduction of the rental claim from Kshs 9,000,000 to Kshs 6,990,000) would not prejudice the defendant. The plea to set aside the proceedings of 5/1/2018 was rejected, there being no hearing on that date and no basis to set aside the evidence of 14/12/2017. The plaintiff was condemned to throwaway costs of Kshs 20,000, the application having been occasioned by her.

Key legal issues

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01

Whether the criteria for re-opening a closed case and receiving additional evidence were satisfied

Holding

The criteria were satisfied: the defendant had not yet testified, so no prejudice would arise, and the valuation report related to the suit property and would probably have a bearing on the effectual adjudication of the dispute

Reasoning

The court set out the six Commonwealth principles governing re-opening, drawing on Mohamed Abdi Mohamud, Samuel Kiti Lewa and Ladd v Marshall. It found the plaintiff's case had closed but the defence had not started; the valuation evidence went to the value of jointly-owned property central to the claim for sale and division of proceeds; the defendant would have the opportunity to present controverting evidence. Re-opening was therefore allowed.

p. 2
02

Whether leave to amend the plaint should be granted

Holding

Leave granted; the amendments (capturing market value of the suit property and reducing the rental income claim from Kshs 9,000,000 to Kshs 6,990,000) would not occasion injustice or prejudice to the defendant

Reasoning

Order 8 Rule 3(1) permits amendment at any stage of the proceedings on just terms. Relying on Eastern Bakery v Castellino as summarized in Institute for Social Accountability, the court held amendments should be allowed where no injustice or prejudice is occasioned. The parties are joint tenants, the amendments reflected the true state of the facts, and were necessary for effectual adjudication.

p. 2
03

Whether the proceedings of 5/1/2018 should be set aside

Holding

The plea was rejected; there was no hearing on 5/1/2018 and no basis was laid to set aside the evidence tendered on 14/12/2017

Reasoning

The court noted the plaintiff's case was heard on 14/12/2017 and no hearing took place on 5/1/2018 (the judgment at one point says 5/1/2017). Even if the plaintiff meant to set aside the 14/12/2017 proceedings, no basis was laid. The evidence tendered remains on record, with the plaintiff at liberty to testify a second time.

p. 2

Legal principles established

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  • The jurisdiction to re-open a case and receive additional evidence is discretionary and guided by six principles: judicious exercise without prejudice to the opposite party; no re-opening to fill gaps in evidence; rejection where there is inordinate and unexplained delay; reasonable diligence in obtaining the evidence; probable important influence on the result; and apparent credibility of the evidence
  • Courts will normally allow amendment of pleadings at any stage of the proceedings if it can be done without occasioning injustice or prejudice to the other party, which prejudice can be compensated by an award of costs

Court orders

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  1. 1.The plaintiff is granted leave to amend her plaint in terms of the draft amended plaint attached to the affidavit in support of the application
  2. 2.The plaintiff's case is re-opened and the plaintiff is allowed to lead additional evidence by herself and by any other witness
  3. 3.The defendant shall have leave to file additional witness statements and documentary evidence
  4. 4.The plaintiff's plea to set aside the proceedings of 5/1/2018 is rejected
  5. 5.The plaintiff shall pay the defendant throwaway costs of Kshs 20,000 before the next hearing date

Authorities

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Legislation

  • Evidence ActSection 146(4)
  • Civil Procedure RulesOrder 18 Rule 10
  • Civil Procedure RulesOrder 8 Rule 3(1)

Cases cited (10)

  • Ladd v Marshall
    (1954) 3 All ER 745
  • Mohamed Abdi Mohammud v Ahmed Abullahi Mohamed & 3 others
    (2015) eKLR
  • Mohamed Abdi Mohamud v Ahmed Abdullahi Mohamad & others
    (2018) eKLR
  • Kipkemei Too v Hellen Tum
    (2014) eKLR
  • Daniel Otieno Awuor v Hardware Trading Stores Limited & Another
    (2016) eKLR
  • Samuel Kiti Lewa v Housing Finance Limited and another
    (2015) eKLR
  • Samuel Kiti Lewa v Housing Finance Company of Kenya Limited & another
    (2015) eKLR
  • Eastern Bakery v Castellino
    [1958] EA 461
  • Institute for Social Accountability and Another v Parliament of Kenya and 3 others
    (2014) eKLR
  • Ochieng and others v First National Bank of Chicago
    CA Civil Appeal Number 149 of 1991
Jurisdiction invoked
Original civil jurisdiction; application brought under Order 18 Rule 10 and Order 8 Rule 3 of the Civil Procedure Rules and Section 146(4) of the Evidence Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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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, "Victoria Naiyanoi Kiminta v Gladys Kiminta Prinsloo [2019] KEELC 2600 (KLR)", Case Analysis (2019). Suit number not stated in the judgment; the application is the plaintiff's Notice of Motion dated 24/7/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2600/eng@2019-07-03

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