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ELCPartially Allowed· [2019] KEELC 3297 (KLR)

Nicelate Mutitu Kathuri v Cyrus Njeru Ireri [2019] KEELC 3297 (KLR)

Environment and Land Court (Court at Embu)
23 May 2019
YAY.M. Angima
1,270 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a defendant to amend his defence, join new landowners as parties, but delayed blocking the plots until those owners were heard.

What this practically means

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Executive summary

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By a Notice of Motion dated 14th November 2018 under Order 8 of the Civil Procedure Rules, the Defendant sought leave to further amend his amended defence and counter-claim, to implead the transferees of portions of the original suit property as interested parties, and to inhibit ten plots pending trial. He contended that the Plaintiff, the widow and administratrix of the original Plaintiff, had subdivided the suit property and transferred portions to her children while an inhibition order was subsisting, and that the original greencard bearing the encumbrance had been removed from the register to facilitate the transfers. The Plaintiff opposed, arguing that the Defendant had forged a sale agreement, was criminally convicted in connection therewith, that the sale agreement was void for want of Land Control Board consent, that no cause of action survived against the deceased original Plaintiff, and that she had lawfully distributed the estate under a confirmed grant. The court, applying Eastern Bakery v Castellino and Central Kenya Ltd v Trust Bank Ltd, held that amendments should be freely allowed absent non-compensable prejudice; the forgery and conviction were irrelevant to an amendment application. Relying on Section 2 of the Law Reform Act, it rejected the argument that the counterclaim did not survive the original Plaintiff's death. Natural justice required joinder of the transferees before their titles could be challenged, so the inhibition prayer was deferred. The motion was allowed in terms of prayers (b) and (c), with the amendment to be filed within fourteen days, the inhibition prayer to be heard upon service, and costs in the cause.

Key legal issues

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01

Leave to further amend the defence and counter-claim

Holding

Leave granted; alleged forgery and criminal conviction are irrelevant to an amendment application, and no non-compensable prejudice was shown

Reasoning

Applying Eastern Bakery v Castellino and Central Kenya Ltd v Trust Bank Ltd, the court held that amendments should be freely allowed absent injustice. The Plaintiff's grounds - forgery, criminal conviction and nullity of the sale agreement for want of Land Control Board consent - were matters she could still plead in response; they did not establish prejudice compensable only by refusing amendment.

p. 2
02

Whether the counterclaim against the deceased original Plaintiff survived his death

Holding

The court was not satisfied the counterclaim did not survive; under Section 2 of the Law Reform Act only specified causes of action (defamation, seduction, enticement of a spouse, adultery) do not survive

Reasoning

The Plaintiff argued that no cause of action survived against the deceased original Plaintiff. The court applied Section 2 of the Law Reform Act (Cap. 26), which limits non-surviving claims to the four enumerated categories, none of which cover the Defendant's counterclaim.

p. 2
03

Joinder of the transferees of subdivided portions of the suit property

Holding

Joinder allowed; the transferees are current registered owners whose titles cannot be challenged without a hearing

Reasoning

The court held that natural justice required the transferees to be joined before the suit is determined, since the Defendant's counterclaim targets titles they now hold. Consequently the inhibition prayer could not be considered until they are served.

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, injustice being compensable by costs
  • The overriding consideration on leave to amend is whether the amendments are necessary for the just determination of the controversy; mere delay without prejudicial effect is not a ground for refusal
  • Persons who are current registered owners of portions of the suit property must be joined as parties before their titles can be lawfully challenged, as a requirement of natural justice

Court orders

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  1. 1.The Defendant's Notice of Motion dated 14th November 2018 is allowed in terms of Order Nos. (b) and (c) thereof (leave to further amend the defence and counter-claim and to implead the interested parties)
  2. 2.The Defendant shall file the amended pleading within fourteen (14) days and serve all concerned parties
  3. 3.Prayer (d) seeking an order of inhibition shall be heard at a later date upon service of the application upon the interested parties
  4. 4.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 8
  • Law Reform Act (Cap. 26)Section 2

Cases cited (2)

  • Eastern Bakery V Castellino
    [1958] E.A. 461
  • Central Kenya Ltd Vs Trust Bank Ltd & 5 Others
    [2000] eKLR
Jurisdiction invoked
Order 8 of the Civil Procedure Rules (interlocutory application in a pending suit)

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, "Nicelate Mutitu Kathuri v Cyrus Njeru Ireri [2019] KEELC 3297 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3297/eng@2019-05-23

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