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ELCAllowedNot stated in the judgment· [2020] KEELC 38 (KLR)

Peter Kalerwa Luta & another v Wycliffe Omoto Alusala & another [2020] KEELC 38 (KLR)

Environment and Land Court
30 April 2020
NMN. A. Matheka
1,259 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 25th November 2019 brought by the plaintiff/applicant under Order 51 Rule 1, Order 8 Rules and Order 1 Rule (1) and (2) of the Civil Procedure Rules 2010 and Sections 1A and 3A of the Civil Procedure Act Cap 21, seeking leave to amend the plaint and to have the annexed draft amended plaint deemed duly filed and served. The applicant, Peter Kalerwa Lutta, supported by Khayombe Mercy Leah, the proposed second plaintiff, explained that at filing of the suit he was the sole registered proprietor of parcel Butsotso/Shibeye/2731; that he sold it to Henry Nathan Wati, who transferred it to Khayombe Mercy Leah, now the registered proprietor with an interest in the suit land. The respondents opposed, terming the application fictitious, defective, misconceived and an abuse of process, and contending that the original plaintiff's interest was extinguished upon sale and transfer of the parcel to Henry Nathan Wati on or about 19th July 2017, and that the intended plaintiff bought the land on an 'as is where is' basis on 10th September 2018 during the pendency of the suit. The court, applying Order 1 Rule 10(2) and the principles in Central Kenya Ltd v Trust Bank and AAT Holdings Ltd, held that amendments and joinder should be freely allowed at any stage absent uncompensatable prejudice, and that a party may even be added after judgment or on appeal. Finding no prejudice to the parties, and stressing the interest of justice in having all matters before the court for a just determination, the court allowed the application, deeming the amended plaint duly filed and served, with costs of the application in the cause.

Key legal issues

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Whether leave to amend the plaint and join the intended plaintiff should be granted

Holding

The application was merited; no prejudice would be suffered by the parties and it is in the interest of justice that all matters be brought before the court for a just and fair decision.

Reasoning

The court invoked Order 1 Rule 10(2) of the Civil Procedure Rules empowering it at any stage, even suo motu, to join a party whose presence is necessary to effectually and completely adjudicate on all questions in the suit. Relying on Central Kenya Ltd v Trust Bank and AAT Holdings Ltd, it held amendments should be freely allowed unless they introduce a new or inconsistent cause of action, affect vested rights, or cause uncompensatable prejudice. It found no prejudice here and granted leave, with costs in the cause.

p. 2

Legal principles established

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  • Amendments of pleadings and joinder of parties should be freely allowed at any stage provided no prejudice or injustice incapable of compensation in costs is caused to the other party.
  • No suit shall be defeated by reason only of misjoinder or non-joinder of a party; joinder may occur before, during or even after trial, and a party may even be added at the appellate stage.
  • The discretion of a trial court to allow amendment of a plaint is wide and unfettered but must be exercised judicially upon defined principles.

Court orders

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  1. 1.The plaintiff/applicant is granted leave to amend the plaint
  2. 2.The draft annexed amended plaint is deemed duly filed and served
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Rules 2010Order 8 Rules
  • Civil Procedure Rules 2010Order 1 Rule (1) and (2)
  • Civil Procedure Rules 2010Order 1 Rule 10(2)
  • Civil Procedure Act Cap 21Section 1A
  • Civil Procedure Act Cap 21Section 3A

Cases cited (6)

  • Central Kenya Ltd vs Trust Bank & 4 Others
    CA No. 222 of 1998
  • AAT Holdings Limited v Diamond Shields International Ltd
    (2014) eKLR
  • Isaac Awuondo vs Surgipharm Ltd & Another
    (2011) eKLR
  • Moi University v Vishva Builders Limited
    Civil Appeal No. 296 of 2004 (unreported)
  • H.D Hasmani v. Banque Du Congo Belge
    (1938) 5 E.AC.A 89
  • Patel vs. E.A. Cargo Handling Services Ltd
    [1974] E.A. 75
Jurisdiction invoked
Order 51 Rule 1, Order 8 Rules and Order 1 Rule (1) and (2) of the Civil Procedure Rules 2010; Sections 1A and 3A of the Civil Procedure Act Cap 21

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, "Peter Kalerwa Luta & another v Wycliffe Omoto Alusala & another [2020] KEELC 38 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/38/eng@2020-04-30

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