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ELCAllowedNot stated in judgment (Notice of Motion dated 2nd March, 2021 arising from Originating Summons dated 29th October, 2015)· [2021] KEELC 1197 (KLR)

Mariam Yusuf & another v Margaret Wanjiru Ngacha (Sued as the Administratix of the Estate of Ngacha Ndeiya (Deceased) & another [2021] KEELC 1197 (KLR)

Environment and Land Court
4 November 2021
JOJ. O. OLOLA
1,056 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed parties to amend their land claim late in the case, ruling that amendments should be freely permitted unless they cause real injustice to the other side.

What this practically means

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Executive summary

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The Applicants, Mariam Yusuf and Fatuma Yusuf, moved the court by Notice of Motion dated 2nd March, 2021 seeking leave to amend their Originating Summons dated 29th October, 2015, on the ground that they had obtained new material evidence and that the amendment would enable the court to determine the questions in controversy without injustice to any party. The 1st Respondent, Margaret Wanjiru Ngacha, opposed the application, arguing it came too late in the day after directions on the hearing had already been given, that the draft amended summons was an entirely new claim rather than an amendment which ought properly to have been brought as a fresh suit, and that such a claim would be time-barred under the Limitation of Actions Act since the cause of action accrued between 1992 and 1997. The 2nd Respondent filed nothing in response. Relying on the principles in Eastern Bakery v Castelino (1958) EA 461, the court held that amendments sought before hearing should be freely allowed absent injustice, and that injustice exists where the amendment changes the character of the action or prejudices existing rights. On examining the draft amendment, the court found the Applicants' basic claim to entitlement to the suit property remained the same, with the amendment only adding historical background. The court further held, applying Order 8 Rule 3(5) and Tripple Eight Construction v City Finance Bank, that introducing a new cause of action arising from substantially the same facts is no bar to amendment, and that the 1st Respondent could raise limitation and other issues in an amended defence and test the new claims in cross-examination. The application was allowed with 14 days for filing the amended summons and 14 days for responses, costs in the suit.

Key legal issues

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01

The applicable principles for granting leave to amend pleadings

Holding

The court applied the classic Eastern Bakery v Castelino principles: amendments should be freely allowed before hearing absent injustice, but refused where they change the action's character or prejudice the opposite party.

Reasoning

The court adopted Sir Kenneth O'Connor's statement of principle, framing the main test as whether the amendment causes injustice to the other side. Injustice is assessed by whether the amendment converts the action into one of a substantially different character or prejudices rights existing at the date of the proposed amendment, with costs able to cure ordinary prejudice.

p. 2
02

Whether the proposed amendment introduced a new, time-barred claim

Holding

No - the basic claim to entitlement to the land remained the same, and Order 8 Rule 3(5) permits adding or substituting a new cause of action substantially similar to the previous one.

Reasoning

A perusal of the draft amended Originating Summons showed it added the historical background of the suit property but did not alter the Applicants' basic claim to entitlement to the land. The Respondent would have an opportunity to raise limitation issues in an amended defence and cross-examine the Applicants. Order 8 Rule 3(5) allows a new cause of action arising from substantially the same facts, as applied in Tripple Eight Construction.

p. 2

Legal principles established

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  • Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, which may be compensated by costs.
  • An amendment introducing or substituting a new cause of action may be allowed where the new cause of action arises out of the same or substantially the same facts as already pleaded.

Court orders

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  1. 1.Leave granted to the Applicants to amend their Originating Summons dated 29th October, 2015
  2. 2.Applicants to file and serve the amended Originating Summons within 14 days
  3. 3.Respondents to have 14 days from service to file and serve any further responses
  4. 4.Costs of the application to be in the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3(5)
  • Limitation of Actions ActNot specified (relied on by the 1st Respondent)

Cases cited (2)

  • Eastern Bakery –vs- Castelino
    (1958) EA 461
  • Tripple Eight Construction Company (Kenya) Limited -vs- City Finance Bank Limited and 2 others
    (2018) eKLR
Jurisdiction invoked
Order 8 Rule 3(5) of the Civil Procedure Rules, in the first-instance civil jurisdiction of the court over the Originating Summons

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, "Mariam Yusuf & another v Margaret Wanjiru Ngacha (Sued as the Administratix of the Estate of Ngacha Ndeiya (Deceased) & another [2021] KEELC 1197 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 2nd March, 2021 arising from Originating Summons dated 29th October, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1197/eng@2021-11-04

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