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ELCAllowedFamily Division Misc Application No. 106 of 2017 (Meru ELC suit)· [2020] KEELC 3599 (KLR)
SML (suing by his next friend JKM) v MMM & 4 others [2020] KEELC 3599 (KLR)
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#What this practically means
#Executive summary
#This is an interlocutory ruling by the Environment and Land Court at Meru in a suit instituted on 19 February 2017 by the plaintiff as next friend of SML, a person subject to guardianship proceedings under the Mental Health Act (Cap 248) before the Nairobi Family Division. The suit concerns the alleged fraudulent and illegal transfer of SML's properties without her authority, without the guardian's authority, and without leave of the court. The plaintiff sought leave to amend the plaint to add three properties (parcels in Njia Cia Mwendwa and Njia Burieruri), which amendment would primarily affect the 3rd, 4th and 5th defendants. The 3rd defendant, an elderly woman, had already testified and been cross-examined on 29 July 2019, and her counsel objected that the amendments would consume considerable time. The court framed one issue: whether the plaintiff should be allowed to amend the plaint. Relying on Daniel Ngetich & Anor v K-Rep Bank Limited [2013] eKLR, the court held that amendments should be granted liberally unless they cause injustice not compensable in costs. Finding that inclusion of all SML's properties would enable determination of the real issues in dispute, and that any prejudice to the 3rd defendant could be cured by recalling her under Section 146(4) of the Evidence Act, the court granted leave to amend and serve the further amended plaint within 14 days, limited to the three specified parcels; allowed defendants 14 days to file defences upon service; and permitted the 3rd defendant to give further evidence on the additional properties. The matter was to proceed to further hearing. No costs order was made.
Key legal issues
#01
Whether to allow amendment of the plaint to add additional properties after a defendant has already testified
Holding
The amendment was allowed; prejudice to the 3rd defendant who had already testified can be cured by recalling her under Section 146(4) of the Evidence Act.
Reasoning
The court applied the liberal approach to amendments, holding that including all properties belonging to SML would enable determination of the real issues in dispute. Although the aged 3rd defendant had already testified and might not have the opportunity to testify on the three additional properties, the court held this prejudice could be addressed by recalling her to give further evidence, invoking Article 159 of the Constitution and Section 146(4) of the Evidence Act.
p. 2
Legal principles established
#- Courts should be liberal in granting leave to amend pleadings, refusing only where the amendment would cause injustice not compensable in costs
Court orders
#- 1.The plaintiff be and is hereby granted leave to amend and serve his further amended plaint within 14 days from the date of this Ruling, limited to inclusion of Njia Cia Mwendwa[….], Njia Burieruri/[….] and Njia Cia Mwendwa/[….] only
- 2.The Defendants are granted leave to file their Defence within 14 days upon service of the amended plaint
- 3.TKM, the 3rd defendant, is at liberty to give further evidence touching on the 3 additional properties
- Jurisdiction invoked
- Article 159 of the Constitution of Kenya; Section 146 of the Evidence Act (Cap 248); Civil Procedure Rules on amendment of pleadings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "SML (suing by his next friend JKM) v MMM & 4 others [2020] KEELC 3599 (KLR)", Case Analysis (2020). Family Division Misc Application No. 106 of 2017 (Meru ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3599/eng@2020-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.