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ELCPartially Allowed· [2020] KEELC 3914 (KLR)

Paul Koech v Robert Kipkoech Mutai [2020] KEELC 3914 (KLR)

Environment and Land Court
23 January 2020
1,885 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kericho court let a defendant rewrite his weak defence mid-case, but made him pay costs for the careless paperwork and flawed third-party joinder.

What this practically means

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Executive summary

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This was a ruling on the Defendant's notice of motion dated 8 June 2019 seeking leave to amend his defence in a land dispute, with a draft amended defence incorporating a counter-claim and seeking to enjoin Simon Too Koech as a third party. The Plaintiff, Paul Koech, and the proposed third party opposed, contending that the Defendant had no provable claim, that the Plaintiff had purchased the property from the original allottee with the third party merely a witness to the sale agreement, that the Defendant's claim against the third party was separate and should be a distinct suit before a different court, and that the amendment would clog and muddle issues and delay the suit. The Defendant relied on the court's wide discretion to allow amendments to bring all matters in dispute before the court and argued that no prejudice had been demonstrated, citing St Patricks Hill School Ltd v Bank of Africa Ltd and Eastern Bakery v Castelino. The court allowed the application, holding that the existing defence was shallow and consisted of bare denials; that amendment may be sought at any stage within reasonable time where costs can compensate the other side; that an injury compensable by costs is not injustice; and that refusal at an early stage would deny the Defendant the right to plead fully. The court cautioned against amendments changing the character of the suit or abusing court process, and criticised the joinder of the third party without adherence to Order 1 procedure, suggesting instead that he be named as a defendant in the counter-claim under Order 7 Rule 8 and Order 8 Rule 1(5), though this was a suggestion rather than a directive. Costs of the application were awarded to both the Plaintiff and the third party, payable by the Defendant, because due diligence in drafting would have avoided the application.

Key legal issues

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01

Whether leave to amend the defence should be granted

Holding

Leave was granted; the existing defence was shallow and bare denials, and the amendment would enable the real issues in controversy to be determined without injustice compensable by costs

Reasoning

The court held that the existing defence was of shallow substance consisting largely of bare denials. Amendment is discretionary and should be allowed to determine real questions in dispute and do substantial justice. Concerns of the Plaintiff and proposed third party could be compensated by costs, and refusal at an early stage would deny the Defendant the right to plead his case fully. Shortcomings in the counter-claim would benefit, not prejudice, the opposing parties.

p. 2
02

Proper procedure for enjoining a third party

Holding

The proposed third party was improperly joined; the correct route may be to name him as a defendant in the counter-claim under Order 7 Rule 8 and Order 8 Rule 1(5)

Reasoning

The court observed that a third party is properly enjoined where the Defendant contends that a third person should bear liability in the claim against him, following the procedure in Order 1. Here the third party was introduced without compliance with that procedure. The court suggested, without directing, that the person be made a defendant to the counter-claim instead, leaving the choice to the Defendant.

p. 2

Legal principles established

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  • The court has a wide discretion to allow amendment at any stage to determine the real questions in dispute or do substantial justice, provided the other side can be compensated by costs.
  • An amendment cannot change the character of the suit; it must flow from the original suit, must be made in good faith, and an injury compensable by costs is not an injustice.

Court orders

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  1. 1.Leave granted to the Defendant to amend his defence
  2. 2.Costs of the application to be paid by the Defendant to both the Plaintiff and the named third party
  3. 3.Suggestion (not a directive) that the proposed third party be enjoined as a defendant in the counter-claim under Order 7 Rule 8 and Order 8 Rule 1(5) of the Civil Procedure Rules, 2010

Authorities

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Legislation

  • Civil Procedure Act (cap 21)Section 3A
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 1
  • Civil Procedure Rules, 2010Order 7 Rule 8
  • Civil Procedure Rules, 2010Order 8 Rule 1(5)

Cases cited (2)

  • St. Patricks Hill School Limited v Bank of Africa Limited
    [2018] eKLR
  • Eastern Bakery v Castelino
    [1958] E.A 461
Jurisdiction invoked
Section 3A of the Civil Procedure Act (cap 21) and Order 51 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Paul Koech v Robert Kipkoech Mutai [2020] KEELC 3914 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3914/eng@2020-01-23

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