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ELCAllowedNot stated in the judgment excerpt· [2019] KEELC 3225 (KLR)

Victor Leo Njuki & 3 others v Alice Njuki Mukono (Suing as the Legal Representative of Njuki Mukono (Deceased) & 11 others [2019] KEELC 3225 (KLR)

Environment and Land Court (court name not expressly stated in the judgment; delivered at Embu)
30 May 2019
YAY.M. Angima
893 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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By a Notice of Motion dated 27th November 2018 brought under Order 1 Rule 3 and Order 8 Rules 3 & 5 of the Civil Procedure Rules, 2010, the Plaintiffs sought leave to join one additional Plaintiff and several new Defendants and to amend the plaint. They contended that some of the original suit properties had been subdivided and transferred to third parties during the pendency of the suit, and that the amendments were necessary for a just and conclusive determination of all issues in controversy. The 6th Defendant opposed the application through a replying affidavit, arguing that some parties were deceased and had not been substituted, and that joining so many parties would complicate and delay the suit. The court considered the parties' pleadings and submissions and restated the principles on amendments from Eastern Bakery v Castellino and Central Kenya Ltd v Trust Bank Ltd: amendments sought before hearing should be freely allowed unless they cause injustice not compensable in costs, and the overriding consideration is whether the amendments are necessary for the just determination of the controversy. Applying Order 1 Rule 3 and Order 8 Rule 3, the court held the amendments were justified to conclusively determine the real issues, noting the law's policy against multiplicity of suits. The Defendants had not demonstrated un-compensable prejudice; the allegation of deceased parties was unproved and would not in any event bar amendment; and fears of delay were addressed by the Defendants' remedies under Order 17. The court allowed the motion, directed the Plaintiffs to file and serve the amended plaint within fourteen days with an affidavit of service, and ordered costs of the application to be in the cause.

Key legal issues

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01

Whether leave to join additional parties and amend the plaint should be granted

Holding

Yes - the amendments were justified to conclusively determine the real issues in controversy, and no un-compensable prejudice was demonstrated

Reasoning

The court applied the classic amendment principles from Eastern Bakery v Castellino and Central Kenya Ltd v Trust Bank Ltd, alongside Order 1 Rule 3 and Order 8 Rule 3 of the Civil Procedure Rules. It reasoned that the law's policy favours free amendment and avoids multiplicity of suits over the same cause of action. The Defendants' claims of deceased parties and delay were not proved, and any prejudice could be remedied by costs.

p. 2
02

Whether allegations of deceased parties and delay defeat an amendment

Holding

No - the allegation of deceased parties was unproved, and even if proved would not bar amendment; fears of delay were unfounded and safeguarded by Order 17

Reasoning

The 6th Defendant's replying affidavit alleged that some parties were deceased and not substituted, but did not identify them, and the court found the allegation unproved. The court further held that even proven deaths would not prevent amendment. On delay, the court noted the Defendants retained remedies under Order 17 to fix the suit for hearing or seek dismissal for want of prosecution.

p. 2

Legal principles established

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  • Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs
  • The overriding consideration on leave to amend is whether the amendments are necessary for the just determination of the controversy; mere delay unaccompanied by compensable prejudice is not a ground for refusal

Court orders

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  1. 1.The notice of motion dated 27th November 2018 is allowed in terms of orders (a) and (b) thereof
  2. 2.The Plaintiffs shall file the amended plaint within fourteen (14) days from the date of the ruling, serve it upon all concerned parties and file an affidavit of service
  3. 3.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 3
  • Civil Procedure Rules, 2010Order 8 Rules 3 & 5
  • Civil Procedure Rules, 2010Order 17

Cases cited (2)

  • Eastern Bakery Vs Castellino
    [1958] EA 461
  • Central Kenya Ltd Vs Trust Bank Ltd & 5 Others
    [2000] eKLR
Jurisdiction invoked
Order 1 Rule 3 and Order 8 Rules 3 & 5 of the Civil Procedure Rules, 2010

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, "Victor Leo Njuki & 3 others v Alice Njuki Mukono (Suing as the Legal Representative of Njuki Mukono (Deceased) & 11 others [2019] KEELC 3225 (KLR)", Case Analysis (2019). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3225/eng@2019-05-30

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