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ELCAllowedNotice of Motion dated 12th March 2018· [2019] KEELC 3192 (KLR)

Piry Johnstone Muye v Shariff Omar Mohamed [2019] KEELC 3192 (KLR)

Environment and Land Court
29 May 2019
JOJ. O. OLOLA
636 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 plaintiff to correct his land case pleadings mid-trial, confirming that clarifying amendments are freely permitted unless they genuinely prejudice the other side.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 12th March 2018 in which the Plaintiff, Piry Johnstone Muye, sought leave to amend his Plaint concerning the suit property, LR No. 7733/III/Kikambala, which had been subdivided into three portions. The Plaintiff argued that the amendment was necessary to reflect the true position regarding the suit property and the parties, and would enable the court to effectually determine all matters in issue. In a Replying Affidavit filed on 22nd May 2018, Jafar Sharif Omar opposed the application, complaining that he had been misjoined as a Defendant; he averred that he owned LR No. 22036-Kijipwa, not the suit property, and that he was a distinct and different individual from Sharriff Omar Mohamed, the originally named Defendant, being only his biological father with no agency or legal relationship between them. The court considered Order 8 Rule 1(1) and Order 8 Rule 5 of the Civil Procedure Rules, which permit amendment at any stage on just terms, and applied the Court of Appeal's decision in Central Bank of Kenya v Trust Bank & 4 Others (Civil Appeal No. 222 of 1998), that amendments should be freely allowed at any stage provided they cause no prejudice or injustice not compensable in costs. Reviewing the draft amended Plaint, the judge found the amendments were meant only to clarify the correct parcel in dispute and to add 'Jaffer Sharriff' as an alias of the Defendant, and could occasion no prejudice to a Defendant who had not yet testified. The application was allowed with costs in the cause.

Key legal issues

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01

Leave to amend pleadings

Holding

Leave to amend was granted where the amendment clarified the correct parcel of land in dispute and added an alias for the Defendant, with no prejudice shown.

Reasoning

The court applied Order 8 Rule 1(1) and Rule 5 of the Civil Procedure Rules, which permit amendment at any stage where just. The Plaintiff showed the suit property had been subdivided into three portions and sought to clarify the correct parcel and add 'Jaffer Sharriff' as an alias of the Defendant. The Defendant opposed on the ground that he owned a different parcel and was distinct from his father, the originally named Defendant. The court found the Defendant, who was yet to testify, would suffer no prejudice and therefore allowed the amendment.

p. 2

Legal principles established

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  • Amendments to pleadings should be freely allowed at any stage of the proceedings provided they will not result in prejudice or injustice to the other party which cannot be compensated for in costs.

Court orders

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  1. 1.The application dated 12th March 2018 is allowed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 1(1)
  • Civil Procedure RulesOrder 8 Rule 5

Cases cited (1)

  • Central Bank of Kenya –vs- Trust Bank & 4 Others
    Civil Appeal No. 222 of 1998
Jurisdiction invoked
Order 8 Rule 1(1) and Order 8 Rule 5 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, "Piry Johnstone Muye v Shariff Omar Mohamed [2019] KEELC 3192 (KLR)", Case Analysis (2019). Notice of Motion dated 12th March 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3192/eng@2019-05-29

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