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ELCAllowedNot stated in judgment· [2019] KEELC 4120 (KLR)

Joseph S. Wafula v Elena Chepkurgat Talam (Sued as the Legal Administrator of the Estate of the late Kiptalam Arap Kogo [2019] KEELC 4120 (KLR)

Environment and Land Court
25 March 2019
MNMwangi Njoroge
2,984 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed you can convert an adverse possession Originating Summons into a plaint without starting your case afresh.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (Mwangi Njoroge, J) on a Notice of Motion dated 6th February 2019 in which the Plaintiff, whose adverse possession claim had been commenced by Originating Summons filed on 4th January 2018, sought leave to amend the Originating Summons to convert it into a plaint. The Plaintiff had occupied 1.5 acres out of Title No. MARIRADI/KOSPRIN/381 since a 1996 sale agreement, but upon learning that the Defendant obtained title in 2016, he wished to add new prayers for a declaration of trust, specific performance and an injunction. The Defendant opposed through Grounds of Opposition and submissions, contending that the amendments introduced a new cause of action of a substantially different character, were prejudicial, and that one mode of commencing suit cannot be substituted for another by amendment. The court applied the principles in Central Kenya Limited v Trust Bank Limited and Order 8 rules 3(2) and 3(5), holding that the new causes of action arose from the same facts as the adverse possession claim. Noting that no defence had been filed, that no express provision barred the amendment, and that rejection would merely force the Plaintiff to file a fresh plaint, and guided by Article 159(2)(d) on procedural technicalities, the court allowed the amendment. The amended document was to be served within 7 days and the cause to proceed as if commenced by plaint. No costs order was made.

Key legal issues

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01

Whether an Originating Summons may be amended into a plaint

Holding

Yes - the amendment is proper where it is not expressly barred, no defence has been filed, and justice is served without prejudice to the other side

Reasoning

The court noted the fluid procedure in adverse possession claims and observed that rejecting the amendment would merely force the applicant to file a fresh suit by plaint. Since no express provision bars the amendment, the Originating Summons had not been responded to, and the amendment changed the mode of proceeding rather than the underlying facts, the court found the amendment proper in the interests of justice.

p. 3
02

Whether new causes of action may be introduced by amendment

Holding

Yes, where they arise out of the same or substantially the same facts under Order 8 rule 3(5)

Reasoning

The court compared the prayers in the Originating Summons and the draft plaint. The new prayers (declaration of trust, specific performance, injunction) arose from the same facts: the 1996 sale agreement, continuous occupation since 1996, and eviction threats from 2016. Because the new causes of action arose from the same facts, the amendment met the requirements of Order 8 rule 3(5).

p. 4
03

Whether the overriding objective of avoiding procedural technicalities supports the amendment

Holding

Yes, Article 159(2)(d) of the Constitution supports allowing the amendment

Reasoning

The court held that allowing a litigant to convert pleadings into the appropriate form, rather than forcing a fresh suit, accords with the constitutional principle that justice shall be administered without undue regard to procedural technicalities. The application's procedural irregularity was treated as of little consequence since the same court would determine any preliminary objection on validity.

p. 3

Legal principles established

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  • Amendments adding or substituting a new cause of action may be allowed if the new cause of action arises out of the same or substantially the same facts as a cause of action already claimed in the suit
  • An originating summons in an adverse possession claim may be amended into a plaint where no express legal provision bars it and no prejudice is caused

Court orders

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  1. 1.The application dated 6th February 2019 is allowed
  2. 2.The amended Originating Summons be served upon the defendant within 7 days
  3. 3.The procedure henceforth shall be as if the cause had from inception been commenced by filing of plaint, and the Civil Procedure Rules shall be complied with to that extent
  4. 4.Any shortfall in fees payable for filing of a plaint may be made up by charging the shortfall at the filing of the amended document stage

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(c), 100
  • Civil Procedure RulesOrder 8 rules 1, 2(5), 3(2), 3(5), 5
  • Constitution of Kenya 2010Article 159(2)(d)
  • Appellate Jurisdiction ActSection 3(2)
  • Civil Procedure Rules (former)Order 36 Rule 10

Cases cited (10)

  • Ngurakapel Ng'iro v Alexander A. Reuben
    [2017] eKLR
  • Chevron (K) Ltd v Harrison Charo Wa Shutu
    [2016] eKLR
  • Stephen Kuguku Mariba vs Kibe Mariba
    Nairobi Civil Appeal No. 186 of 2002
  • Joseph Ochieng & 2 others T/A Aquiline Agencies Vs First National Bank of Chicago
    (1995) eKLR
  • Central Kenya Limited v Trust Bank Limited
    (2000) 2 E.A 365
  • George Arwonga Kombo -vs- Jackson Ondari Kombo
    [2011] eKLR, Kisii High Court Civil Suit No. 254 of 2009
  • Stephen Kaguku Mariba -vs- Kibe Mariba
    Nairobi Civil Appeal No. 188 of 2002
  • Caltex Oil (K) Ltd -vs- Harrison Charo Washutu
    Malindi Civil Appeal No. 17 of 2018
  • Abubakar Herezo Bwana -vs- Twahir Mohamed Salim Said & 2 Others
    1991 2 KAP 262
  • Gulam Miriam Noordin case
Jurisdiction invoked
Order 8 rules 1, 3 and 5; Sections 1A, 1B, 3, 3A, 63(c) and 100 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (12)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph S. Wafula v Elena Chepkurgat Talam (Sued as the Legal Administrator of the Estate of the late Kiptalam Arap Kogo [2019] KEELC 4120 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4120/eng@2019-03-25

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