Christopher Makokha Okoyo & 5 others v Ali Malala Wamukoya [2019] KEELC 3314 (KLR)
The bottom line
#A Busia court allowed land claimants to amend their case and add a lender late in proceedings, but made them pay the other side's legal costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the application is res judicata
The application is not res judicata because court records do not show a prior request to amend on 8/7/2015 as alleged by the Respondent.
The Respondent argued the Applicants had orally applied for leave to amend and been rejected. The court examined the record of 8/7/2015, the date of the alleged prior request, and found it showed something different. Since the alleged prior request was not borne out by the court records, the plea of res judicata failed.
Whether leave to further amend and enjoin the chargee should be granted despite delay
Leave granted; the court takes a liberal approach to amendment and joinder, and the Respondent can be compensated by costs.
Although the Applicants had the copy of the land register all along and should have enjoined the chargee earlier, the court prefers a liberal approach to amendments and joinder to serve the interests of justice. Amendment was primarily justified by the sickness of one Applicant; the joinder amendment was permitted incidentally, with the Respondent compensated by costs.
Whether the Applicants may remove Fredrick Oduor from the proceedings on account of mental incapacity
This ground is persuasive; the sickness of a party justifies the amendment despite no medical records being exhibited.
The Respondent submitted that no medical records were availed to back up the alleged incapacity. The court noted the sickness was referenced on 8/7/2015 in court, observed that nobody invites sickness upon himself, and found this ground persuasive and sufficient to allow the Applicants to do as they intend.
Legal principles established
#- The court's wide power to allow amendment at any stage is designed to prevent failure of justice from procedural errors and to determine the true substantive merits of a case
- Joinder of parties may take place at any stage of the proceedings where it enables the court to effectually and completely adjudicate on all questions in the suit
- Leave to amend is not normally granted where the necessity of the amendment was obviously apparent long before trial and was not asked for
- The court adopts a liberal approach to amendment and joinder so as to serve the interests of justice, and an injury compensable by costs is not injustice
Court orders
#- 1.Leave granted to the Applicants to further amend the amended Originating Summons and file further affidavits, with the further amended Originating Summons and further affidavits deemed duly filed upon payment of the requisite fees
- 2.The intended second Respondent (the chargee) may be enjoined as part of the amendment
- 3.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Order 8 Rules 3, 4, 7(3) and 8 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christopher Makokha Okoyo & 5 others v Ali Malala Wamukoya [2019] KEELC 3314 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3314/eng@2019-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.