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ELCPartially AllowedNot stated in the judgment (application dated 10th May 2019 in a suit filed in 2015)· [2020] KEELC 3119 (KLR)

Esther Wanjiku Muchira v James Munene Muchiri & 2 others [2020] KEELC 3119 (KLR)

Environment and Land Court
21 February 2020
ECE.C. Cherono
1,128 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 10th May 2019 brought under Order 8 Rule 3 of the Civil Procedure Rules in which the Plaintiff sought leave to amend the plaint to include a claim for mesne profits, having inadvertently omitted that prayer when instituting the suit in 2015. The Plaintiff contended that the 3rd Defendant had occupied the suit land illegally from 2012, occasioning loss of profits, and that no prejudice would be suffered if the amendment were allowed. The 3rd Defendant opposed the application as an afterthought, arguing that the suit was filed in 2015, that the matter was part-heard with one witness already stood down, and that the Plaintiff was undeserving of the court's discretionary favour. The 1st Defendant did not oppose the application. The court considered the principles governing amendment of pleadings, including the dictum in Central Kenya Ltd v Trust Bank and Elijah Kipngeno Arap Bu v Kenya Commercial Bank, that amendments should be freely allowed at any stage provided no prejudice or injustice not compensable in costs results, and that an amendment will be refused where it would deprive a defendant of a limitation defence or introduce a new cause of action. Finding that the 3rd Defendant had not demonstrated any such disqualifying prejudice, that the proposed amendment was neither useless nor merely technical, and that it was made in good faith, the court allowed the application. The Plaintiff was granted 7 days to amend, file and serve the amended plaint, the Defendants were granted 14 days from service to amend their defence, and the Plaintiff was ordered to bear the costs of the application in any event.

Key legal issues

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01

Whether leave to amend the plaint to add a claim for mesne profits should be granted

Holding

The application was allowed; the amendment was made in good faith and no disqualifying prejudice, limitation bar or new cause of action was demonstrated by the 3rd Defendant.

Reasoning

The court applied the established principles on amendment of pleadings, noting that the purpose of an amendment is to facilitate determination of the real question in controversy. The Respondent did not demonstrate that the amendment would deprive her of a limitation defence, introduce a new cause of action, or cause prejudice not compensable in costs. The delay since 2015 was not treated as disqualifying since amendments may be sought at any stage. The application was accordingly found merited, with costs of the application borne by the Plaintiff.

p. 2

Legal principles established

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  • Amendments to pleadings should be freely allowed at any stage of the proceedings provided no prejudice or injustice that cannot be compensated in costs is caused to the other party.

Court orders

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  1. 1.The Plaintiff/Applicant is granted leave to amend, file and serve his plaint in terms of the draft amended plaint annexed to the supporting affidavit sworn on 10th May 2019 within 7 days
  2. 2.The Defendants/Respondents are granted corresponding leave to amend, file and serve their defence within 14 days from the date of service thereof
  3. 3.The costs of the application to be borne by the Plaintiff in any event

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 8 Rule 5
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Limitation ActNot specified (referred to generally as 'Limitation Act')

Cases cited (4)

  • Hon. Attorney General Vs Halal Meat Products Limited
    (2016) e K.L.R.
  • Rajashal T/A Rajan S. Shal & Partners Vs Bipin P. Shal
    (2016) e K.L.R.
  • Central Kenya Ltd Vs Trust Bank & 4 others
    Civil Appeal No. 222 of 1998
  • Elijah Kipngeno Arap Bu Vs Kenya Commercial Bank Limited
    (2013) e K.L.R
Jurisdiction invoked
Order 8 Rule 3 Civil Procedure Rules; Sections 1A, 1B and 3A Civil Procedure Act

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, "Esther Wanjiku Muchira v James Munene Muchiri & 2 others [2020] KEELC 3119 (KLR)", Case Analysis (2020). Not stated in the judgment (application dated 10th May 2019 in a suit filed in 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3119/eng@2020-02-21

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