Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in judgment· [2021] KEELC 78 (KLR)

Bruno Agonga Odoury v Mathews Obuya & 2 others [2021] KEELC 78 (KLR)

Environment and Land Court
2 December 2021
AOANTONY OMBWAYO
1,883 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court allowed a plaintiff to expand his lawsuit to seek eviction and damages, but refused to silence the defendant over alleged disobedience of a court order.

What this practically means

#

Executive summary

#
This is a ruling of the Environment and Land Court at Kisumu (Antony Ombwayo, J) on a Notice of Motion dated 12th May 2021 in a land dispute over parcel WEST KISUMU/OJOLA/4155. The plaintiff, who had obtained a recorded injunction on 4th July 2011 restraining the defendants from entering upon, trespassing on, building on or planting on the suit land, sought leave to amend his plaint to add prayers for eviction, demolition of structures and crops and loss of use, and further sought an order barring the 1st Defendant, Mathews Obuya, from being heard unless he purged contempt of the injunction, he having been committed to 30 days imprisonment by a ruling of 5th December 2012 following a District Surveyor's report. The respondent opposed, describing the application as misconceived and an abuse of process, arguing there was no evidence of contempt or trespass and that the proposed claims were time barred. The court restated the law on amendment of pleadings under Order 8 Rule 3 of the Civil Procedure Rules, 2010 and the settled principles from Eastern Bakery v Castelino, Tildesley v Harper, Simonian v Johar and Ochieng v First National Bank of Chicago: amendments should be freely allowed if made in good faith and without prejudice not compensable by costs, even where limitation has run. Holding that no prejudice had been demonstrated, the court allowed prayer 2, granting leave to amend the plaint. It declined prayer 3, finding the applicant had not demonstrated that the defendant was in contempt of a court order. The ruling was delivered electronically on 2nd December 2021 pursuant to COVID-19 directions.

Key legal issues

#
01

Whether leave to amend the plaint should be granted so as to add claims for eviction, demolition of structures and crops and loss of use

Holding

Leave to amend was granted; the applicant demonstrated the need to amend to bring out the best cause of action, and the respondent did not demonstrate prejudice incapable of compensation by costs

Reasoning

The court restated Order 8 Rule 3 of the Civil Procedure Rules, 2010 and the settled principles in Eastern Bakery v Castelino, Tildesley v Harper and Ochieng v First National Bank of Chicago that amendments should be freely allowed at any stage if made in good faith and without injustice compensable by costs. The plea of limitation does not bar an amendment, and no prejudice was shown.

p. 3
02

Whether the 1st Defendant should be barred from being heard for contempt of the injunction order of 25th July 2011

Holding

The prayer to bar the 1st Defendant from being heard was declined because contempt was not demonstrated

Reasoning

Although the plaintiff alleged that the 1st Defendant breached the injunction and was committed to 30 days imprisonment by a ruling of 5th December 2012, and continued to reside on and cultivate the suit land, the court found that the applicant had not demonstrated that the defendant is currently in contempt of a court order, and therefore declined to grant the barring order.

p. 3

Legal principles established

#
  • Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs
  • Expiry of the limitation period does not by itself prevent the court from granting leave to amend pleadings

Court orders

#
  1. 1.Leave granted to the Plaintiff to amend his plaint in terms of the Draft Amended Plaint annexed to his Supporting Affidavit (prayer 2 granted)
  2. 2.Prayer 3 (barring the 1st Defendant from being heard until he purges contempt) declined
  3. 3.Judgment dated, signed and delivered at Kisumu on 2nd December 2021 and delivered by electronic mail due to COVID-19 measures

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 8 Rule 3
  • Limitation of Actions Actreferenced generally in the Ochieng principles

Cases cited (10)

  • Abdul Karim Khan v Mohamed Roshan
    (1965) EA. 289 (C.A)
  • Eastern Bakery v. Castelino
    (1958) E.A. 461 (U.)
  • Tildesley v Harper
    (1878), 10 Ch.D. 296
  • Budding v. Murdoch
    (1875) 1 Ch.D 42
  • Ma Shwe Mya v. Maung Po Hnaung
    (1921), 48 I.A. 214, 48 Cal. 832
  • Raleigh v. Goschen
    (1898) 1 Ch. 73
  • Weldon v. Neal
    (1887) 19 Q.B.D. 394
  • Hilton v Sutton Steam Laundry
    (1946) K.B. 65; (1945) 2 All E.R. 425
  • Simonian v Johar
    (1962) EA. 336 (K.)
  • Ochieng and Others v First National Bank of Chicago
    Civil Appeal Number 147 of 1991
Jurisdiction invoked
Original jurisdiction over land dispute; application under Order 8 Rule 3 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bruno Agonga Odoury v Mathews Obuya & 2 others [2021] KEELC 78 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/78/eng@2021-12-02

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