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ELCAllowedNotice of Motion dated 29th January 2019 (Malindi ELCC)· [2020] KEELC 1766 (KLR)

Kazungu Karisa Hazizi & another (Suing as the legal representative of the Estate of Karisa Hazizi Ngungi v Josephine Wanjiku Mwaghoti [2020] KEELC 1766 (KLR)

Environment and Land Court
10 July 2020
JOJ.O. Olola
925 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court allowed a family to add eight new parties to their suit because the buyer had secretly sold off portions of the land.

What this practically means

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Executive summary

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By a Notice of Motion dated 29th January 2019, the Plaintiffs, Kazungu Karisa Hazizi and Kasichana Karisa Hazizi, suing as the legal representatives of the Estate of Karisa Hazizi Ngungi, sought leave to amend their Plaint to enjoin the Proposed 2nd to 9th Defendants. The application was prompted by the Defendant's Statement of Defence and Counterclaim filed on 25th September 2018, which revealed that she had sold portions of the suit premises to third parties. The Defendant, Josephine Wanjiku Mwaghoti, opposed the application, arguing that it would introduce an entirely new case against parties with no interest in the suit property, Plot No. Kilifi/Mtondia 2916, and would delay fair trial. The court, exercising its discretion under Order 8 Rule 3 of the Civil Procedure Rules, applied the Court of Appeal's decision in Central Kenya Ltd v Trust Bank Ltd, which permits amendments necessary for determining the real question in controversy or avoiding multiplicity of suits, provided there is no undue delay, no new or inconsistent cause of action, no affected vested interest and no injustice to the other side. The court held that the amendments were necessitated by the Defendant's own pleadings, were brought only four months after the Defence, and that any new cause of action arising from the same facts is permissible under Order 8 Rule 3(5). The Defendant was found not to be prejudiced. The application was allowed with 21 days to file and serve the Amended Plaint, and costs were awarded in the cause.

Key legal issues

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Whether the Plaintiffs' application to amend the Plaint and enjoin the Proposed 2nd to 9th Defendants should be allowed

Holding

The application was allowed; the amendments were necessitated by the Defendant's own Statement of Defence and Counterclaim and would not prejudice her.

Reasoning

Order 8 Rule 3 confers a wide discretion to allow amendments at any stage. Applying the Central Kenya Ltd test, the court found the amendments necessary for determining the real question in controversy because they arose from the Statement of Defence and Counterclaim. The application was made only four months after the Defence, so no undue delay or prejudice beyond compensable costs was shown, and a new cause of action arising from the same facts is permissible under Order 8 Rule 3(5).

p. 2

Legal principles established

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  • A party may be allowed to amend pleadings as may be necessary for determining the real question in controversy or to avoid multiplicity of suits, provided there is no undue delay, no new or inconsistent cause of action, no vested interest affected and no injustice to the other side
  • An amendment adding or substituting a new cause of action may be allowed where the new cause of action arises out of the same facts or is substantially similar to that already claimed

Court orders

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  1. 1.The application dated 29th January 2019 is allowed
  2. 2.The Plaintiffs have 21 days from the date of the ruling to file and serve the Amended Plaint
  3. 3.The costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 8 Rule 3(5)

Cases cited (1)

  • Central Kenya Ltd –vs- Trust Bank Ltd
    (2000) 2 EA 365
Jurisdiction invoked
Order 8 Rule 3 of the Civil Procedure Rules (discretion to allow amendment of pleadings)

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, "Kazungu Karisa Hazizi & another (Suing as the legal representative of the Estate of Karisa Hazizi Ngungi v Josephine Wanjiku Mwaghoti [2020] KEELC 1766 (KLR)", Case Analysis (2020). Notice of Motion dated 29th January 2019 (Malindi ELCC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1766/eng@2020-07-10

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