Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC Cause filed in 2009 (full number not stated in judgment)· [2020] KEELC 3328 (KLR)

John Gachoki & 3 others v Silas Mwendwa & 3 others [2020] KEELC 3328 (KLR)

Environment and Land Court
14 February 2020
ECE.C. Cherono
1,432 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court allowed an 11-year-old lawsuit to be corrected so the church's trustees, not individual officials, face the case, with modest costs to the defendants.

What this practically means

#

Executive summary

#
The Plaintiffs/Applicants moved the Environment and Land Court at Kerugoya by Notice of Motion dated 3rd August 2017 seeking leave to amend their plaint so as to add the Grounds of Truth Registered Trustees as 4th Defendant, with the draft amended plaint deemed duly filed and costs provided for. The 3rd Defendant filed grounds of opposition, contending the application was bad in law, an abuse of process, and marked by inordinate delay in a suit filed in 2009, which had already proceeded with the Plaintiffs closing their case. The 1st and 3rd Defendants argued the application was an afterthought and that the proper procedural route was Order 1 Rule 10 and Order 8 Rule 3 CPR. The Plaintiffs relied on Order 1 Rule 10(a) and Order 8 Rule 5(1) CPR and several authorities. The court, per E.C. Cherono, J, held that the substance of the application was the addition of a new party under Order 1 Rule 3 CPR, and that the amendment sought to bring the proper identity of the Defendants - the Registered Trustees of the Grounds of Truth Church - into the suit so that any orders could be enforced against the proper entity. Applying G.L. Baker Ltd v Medway Building and Supplies Ltd, the court found no prejudice to the Defendants that costs could not compensate, especially as only the Plaintiffs had testified. The application was allowed: leave to amend granted to the Plaintiffs within 7 days, corresponding leave to the Defendants within 14 days of service, and thrown away costs of Ksh. 10,000/= awarded to the Defendants.

Key legal issues

#
01

Whether leave to amend the plaint to enjoin the Registered Trustees of Grounds of Truth Church as 4th Defendant should be granted despite delay

Holding

Yes; the amendment seeks to bring the proper identity of the Defendants before the court and causes no prejudice compensable by costs.

Reasoning

The application was brought under Order 8 Rule 3 CPR, and an application to add a party is founded under Order 1 Rule 3 CPR. The court held that amendments are freely given to effectually determine the real issues in controversy and are underpinned by fairness, equity and good conscience. The defendants had been sued as officials of the church, and the amendment brings the Registered Trustees, the proper entity, into the suit so orders can be enforced against them. Only the plaintiffs had testified; the defendants had not, so no prejudice arose, and any inconvenience is met by an award of thrown away costs.

p. 3

Legal principles established

#
  • Amendments ought to be freely allowed where necessary to determine the real question in controversy between the parties.

Court orders

#
  1. 1.Plaintiffs/Applicants granted leave to amend, file and serve the plaint in terms of the draft amended plaint annexed to the affidavit of John Gachoki within 7 days
  2. 2.Defendants granted corresponding leave to amend their pleadings within 14 days from the date served
  3. 3.Plaintiffs to pay Defendants/Respondents thrown away costs of Ksh. 10,000/= to be paid before the next Court action

Authorities

#

Legislation

  • Civil Procedure RulesOrder 8 Rule 5(1)
  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 1 Rule 10(a)
  • Civil Procedure RulesOrder 1 Rule 3

Cases cited (14)

  • Tang Gas Distributors Ltd Vs Said & Others
    (2014) E.A, 448
  • Nderitu Wachira Receiver & Receiver and Manager of Bulleys Tannevies Ltd (Under Receivership) & 4 Others Vs Siragi Enterprises Ltd & Another
    (2016) e K.L.R.
  • Central Kenya Ltd Vs Trust Bank Ltd
    (2002) 2 E.A. 365
  • Elijah Kipngeno Arap Bill Vs Kenya Commercial Bank Limited
    (2013) e K.L.R
  • Joseph Ochieng & 2 Others Vs First National Bank of Chicago
    Civil Appeal No. 149 of 1991
  • Kenya Commercial Bank Ltd Vs John Benjamin Wanyama
    Civil Appeal No. 97 of 1999
  • John Kasaine & Others Vs Pasaye Ole Kereme
    ELC Cause No. 10 of 2017 (Formerly HCCC No. 246 of 2000)
  • St. Patrick's Hill School Limited Vs Bank of Africa Kenya Ltd
    Civil Case No. 7 of 2017
  • Ochieng and Others Vs First National Bank of Chicago
    Civil Appeal No. 147 of 1991
  • Weldon Neal
    (1887) 19 Q B D 394
  • Kassam Vs Bank of Baroda
    (2002) e K.L.R.
  • Lawrence Owino Omondi Vs Kenneth Inea Muyera
    (2017) e K.L.R
  • John Mulwa Kangatu Vs Pan African Insurance Co. Ltd
    (2015) e K.L.R.
  • G.L. Baker Ltd Vs Medway Building and Supplies Ltd
    (1958) 3 All E.R 540
Jurisdiction invoked
Order 8 Rule 3 and Order 1 Rule 10 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "John Gachoki & 3 others v Silas Mwendwa & 3 others [2020] KEELC 3328 (KLR)", Case Analysis (2020). ELC Cause filed in 2009 (full number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3328/eng@2020-02-14

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