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ELCDismissed· [2019] KEELC 3296 (KLR)

Charles Njeru Mugane & another v Henry Ndwiga Kiura [2019] KEELC 3296 (KLR)

Environment and Land Court
23 May 2019
1,481 words in judgment
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The bottom line

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The Environment and Land Court in Embu refused to let a defendant amend his case after the hearing ended, calling it a delaying tactic in a twelve-year-old land dispute.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Embu by Y.M. Angima, J, dealt with a notice of motion dated 11th December 2018 filed by the Defendant under Order 8 Rules 3 and 8 of the Civil Procedure Rules, sections 20 to 23 of the Environment and Land Court Act and sections 3 and 3A of the Civil Procedure Act. The Defendant sought leave to amend his defence and counterclaim and to add more documentary evidence after the hearing of the suit had concluded on 22nd November 2018 and while it was pending judgment. He contended that his former advocates had failed to conduct the suit properly, leaving out crucial evidence, and that the Plaintiffs' father had fraudulently obtained a grant in Embu High Court Succession No. 886 of 2002 depriving his grandfather of a portion of the suit property. The Plaintiffs opposed, arguing the application was an abuse of process, the Defendant had been represented throughout, and no new documents or evidence were identified. The court applied the established principles from Eastern Bakery v Castellino and Central Kenya Ltd v Trust Bank Ltd, that amendments should be freely allowed unless they would cause uncompensable prejudice. It found the draft amendment incomplete, the fraud issue already pleaded, and most of the listed documents already on record or producible with due diligence. The court held the Defendant had been accorded a reasonable opportunity to defend the suit, including two prior amendments, and that the application bore the hallmarks of a delaying tactic in a suit pending about twelve years. The motion was dismissed with costs to the Plaintiffs, and a judgment date was to be fixed.

Key legal issues

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01

Whether leave to amend pleadings and to add further evidence should be granted post-hearing when the suit is pending judgment

Holding

The application was dismissed. The amendment sought was not justified, raised no new issues, and the additional documents were largely already on record or producible with due diligence.

Reasoning

Order 8 Rule 3 permits amendment at any stage, and courts are liberal in granting leave before hearing. But this application came after both parties had closed their cases and the suit was pending judgment. The draft amendment was incomplete (only the first page annexed) and the alleged fraud issue was already pleaded in the further amended defence and counterclaim of 23rd January 2018. Most listed documents were already filed or produced at trial, or could have been produced with due diligence. The Defendant had been given two prior opportunities to amend and had been accorded a reasonable opportunity to defend the suit, which had pended for about twelve years.

p. 3
02

Whether dissatisfaction with former advocates' conduct of the suit justifies reopening a concluded hearing

Holding

No. A litigant's unhappiness with former advocates cannot be a reason to reopen a matter pending judgment, nor can a previously rejected adjournment application justify the amendment.

Reasoning

The Defendant contended that his former advocates left out crucial evidence and documents. The court held that the Defendant had been represented until the tail end of proceedings and had taken over conduct of his defence on 22nd November 2018, when his request for an adjournment to produce additional documents was refused in a suit pending for over eleven years. The court found the application to be a delaying tactic and noted there was no justification to reopen the old suit at the Defendant's convenience.

p. 3

Legal principles established

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  • Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, which can be compensated by costs
  • The overriding consideration on an application for leave to amend is whether the amendments are necessary for the just determination of the controversy; delay is only a bar where it prejudices the opposite party beyond compensation in costs
  • After the hearing has concluded and the matter is pending judgment, an amendment will only be allowed where it is justified as seeking to bring out the real issues in controversy; dissatisfaction with former advocates' conduct of the suit is not a ground to reopen a matter

Court orders

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  1. 1.The Defendant's notice of motion dated 11th December 2018 seeking leave to amend his defence and counterclaim and to add more evidence in form of documents is dismissed with costs to the Plaintiffs
  2. 2.The court to proceed to fix a judgment date upon delivery of the ruling

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 8 Rule 8
  • Environment and Land Court Act No. 19 of 2011Section 20
  • Environment and Land Court Act No. 19 of 2011Section 21
  • Environment and Land Court Act No. 19 of 2011Section 22
  • Environment and Land Court Act No. 19 of 2011Section 23
  • Civil Procedure Act (CAP 21 Laws of Kenya)Section 3
  • Civil Procedure Act (CAP 21 Laws of Kenya)Section 3A

Cases cited (2)

  • Eastern Bakery Vs Castellino
    [1958] EA 461
  • Central Kenya Ltd Vs Trust Bank Ltd & 5 Others
    [2000] eKLR
Jurisdiction invoked
Sections 20, 21, 22 and 23 of the Environment and Land Court Act No. 19 of 2011; sections 3 and 3A of the Civil Procedure Act (Cap 21); Order 8 Rules 3 and 8 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, "Charles Njeru Mugane & another v Henry Ndwiga Kiura [2019] KEELC 3296 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3296/eng@2019-05-23

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