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ELCAllowed· [2019] KEELC 3897 (KLR)

George Kinyanjui Muriithi v Grace Rodah Osome, Molyn Credit Ltd, Land Registrar Nakuru, Anne Wambui Mwangi & Janet Nelima Nyukuri (Environment & Land Case 486 of 2013) [2019] KEELC 3897 (KLR)

Environment and Land Court
28 March 2019
MSMunyao Sila
1,224 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court allowed a land defendant to add a counterclaim mid-trial, showing Kenyan courts permit late amendments when no one objects and no injustice results.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (Munyao Sila J) determined an application dated 31 January 2019 by the 5th defendant under Order 8 of the Civil Procedure Rules and Section 100 of the Civil Procedure Act seeking leave to amend her defence to include a counterclaim for general damages, vacant possession or eviction of the plaintiff from Njoro/Ngata Block 1/5105. The underlying suit, filed on 31 July 2013, concerns two plots the plaintiff alleges he sold to the 1st defendant without full payment, and which the 1st defendant allegedly transferred by forgery; plot 5105 was sold to the 4th defendant and then to the 5th defendant. The plaintiff sought revocation of the titles of the 1st, 4th and 5th defendants. The 5th defendant had pleaded full payment and possession, and that the plaintiff encroached on and damaged her fencing. At the inter partes hearing none of the other parties appeared or filed anything in opposition. The court restated the governing principle, drawn from O'Connor J's dictum in Eastern Bakery v Castelino and the English authorities cited therein, that amendments should be freely allowed at any stage provided they occasion no injustice to the other side, who may be compensated by costs, while noting that the probability of injustice rises once a matter is part-heard and the amendment is substantive. Because the plaintiff, who had already testified, did not oppose the motion, the court found no reason to refuse it. The application was allowed, with leave to amend within 7 days, and no orders as to costs were made.

Key legal issues

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01

Whether an amendment introducing a counterclaim may be permitted at a part-heard stage

Holding

Allowed, principally because the plaintiff did not oppose the application

Reasoning

The court restated the principle from Eastern Bakery v Castelino that amendments sought before hearing should be freely allowed if no injustice is caused, since the other side can be compensated by costs. It acknowledged that where the matter is part-heard and the amendment is substantive, injustice becomes more likely. However, the plaintiff did not oppose the application, and the court therefore found no reason to refuse it, allowing the amendment with a 7-day timeline.

p. 2

Legal principles established

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  • Amendments to pleadings may be allowed at any stage of the proceedings and should be freely allowed where they cause no injustice to the other side, which can be compensated by costs
  • The probability of injustice increases as a suit progresses; substantive amendments sought after hearing has commenced may more readily be refused

Court orders

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  1. 1.Application dated 31 January 2019 allowed
  2. 2.The 5th defendant/applicant may amend her defence to include the counterclaim within the next 7 days
  3. 3.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 8 (including Order 8 Rule 3)

Cases cited (8)

  • Eastern Bakery vs Castelino
    (1958) EA 461
  • Tildesley v. Harper
    (1878), 10 Ch. D. 393
  • Clarapede v. Commercial Union Association
    (1883), 32 W.R. 262
  • Budding v. Murdoch
    (1875), 1 Ch. D. 42
  • Ma Shwe Mya vs. Maung Po Hnaung
    (1921), 48 I.A. 214; 48 Cal. 832
  • Raleigh v. Goschen
    [1898] 1 Ch. 73, 81
  • Weldon v. Neal
    (1887), 19 Q.B.D. 394
  • Hilton v. Sutton Steam Laundry
    [1946] K.B. 65
Jurisdiction invoked
Order 8 of the Civil Procedure Rules, 2010 and Section 100 of the Civil Procedure Act, Cap 21 Laws of Kenya

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, "George Kinyanjui Muriithi v Grace Rodah Osome, Molyn Credit Ltd, Land Registrar Nakuru, Anne Wambui Mwangi & Janet Nelima Nyukuri (Environment & Land Case 486 of 2013) [2019] KEELC 3897 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3897/eng@2019-03-28

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