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ELCDismissed· [2021] KEELC 1440 (KLR)

Aaron Tafari Ouko & another v Solomon Boit [2021] KEELC 1440 (KLR)

Environment and Land Court
14 October 2021
MOMOGENI
3,614 words in judgment
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·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused a defendant's late attempt to add an adverse possession claim ten years into a land dispute, warning against piecemeal pleading.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Nairobi on the defendant/applicant's notice of motion dated 24 June 2021 seeking leave to amend his statement of defence and counterclaim out of time, so as to introduce a claim for title to LR No. 3589/6 by adverse possession, with corresponding leave for the plaintiffs to reply, and with costs in the cause. The application was brought under Sections 1A, 1B, 3A and 100 of the Civil Procedure Act and Order 8 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The defendant argued that the court enjoys a wide discretion under Order 8 to allow amendments at any stage before judgment, that no prejudice would befall the plaintiffs who would have an opportunity to reply, and that his continuous occupation and development of the suit land since 1995 had given rise to a prescriptive right. The plaintiffs, through the 1st plaintiff's replying affidavit, opposed the application, contending that the defendant was a trespasser engaged in a scheme to defraud the estate of the late Jason Atinda Ouko; that the defendant had historically failed to pursue his defence, with his advocates ceasing to act in 2017; and that the amendment sought, ten years after suit was filed, was speculative and designed to delay. The court framed one issue: whether the application to amend the defence ought to be allowed. Reviewing the settled principles from Ochieng v First National Bank of Chicago, Eastern Bakery v Castelino and Abdul Karim Khan v Mohamed Roshan, Mogeni J held that although amendments may be sought at any stage, the discretion must be exercised judiciously; the proposed adverse-possession counterclaim was absent from the original defence, altered the character of the suit, and allowing it on the eve of hearing would prejudice and injustice the plaintiffs. The court detected a fishing expedition and declined the application, with costs of the motion to abide the outcome of the main suit.

Key legal issues

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Whether leave to amend the defence to introduce a counterclaim in adverse possession should be granted at this late stage

Holding

The application was declined; the amendment alters the character of the suit, is brought ten years late, and would prejudice the plaintiffs

Reasoning

The court's discretion under Order 8 must be exercised judiciously. Although amendments may be sought at any stage and even after limitation has expired, the proposed adverse-possession counterclaim was absent from the original defence, alters the character of the suit, and allowing it on the eve of hearing would occasion prejudice and injustice to the plaintiffs. The court perceived a fishing expedition and declined the amendment.

p. 5

Legal principles established

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  • Amendments 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 party can be compensated by costs
  • Parties must not plead their cases in instalments but should put their case forward holistically
  • An amendment that entirely alters the nature/character of the suit should not be allowed where it prejudices the other side

Court orders

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  1. 1.Application to amend the defence and counterclaim declined
  2. 2.Costs of the motion to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A & 100
  • Civil Procedure Rules, 2010Order 8 Rules 3, 5(1); Order 11; Order 51 Rule 1
  • Limitation of Actions Actreferenced re: limitation and adverse possession

Cases cited (11)

  • George Gikubu Mbuthia v Consolidated Bank of Kenya Ltd & Another
    [2016] eKLR
  • Eastern Bakery v Castelino
    [1958] E.A. 461
  • Enock Chirchir Katam & 2 others v William Maiyo & another
    [2012] eKLR
  • Ramco Investment Limited v Nairobi City Water & Sewerage Company Limited
    [2017] eKLR
  • Nicholas Okoth Okoyo v Prisca Ondiek Oketch & 4 others
    [2018] KLR
  • DMM v RMM
    (2017) eKLR
  • Joseph Ochieng & 2 others t/a Aquiline Agencies v First National Bank of Chicago
    Civil Appeal No 149 of 1991
  • David Jonathan Grantham & Another v National Social Security Fund
  • Abdul Karim Khan v Mohamed Roshan
    (1965) EA 289
  • Catherine Koriko & 3 others v Evaline Rosa
    (2020) eKLR
  • Evaline Rosa v Catherine Koriko & 3 others
    [2016] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A & 100 of the Civil Procedure Act and Order 8 Rule 3, 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 (2)

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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, "Aaron Tafari Ouko & another v Solomon Boit [2021] KEELC 1440 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1440/eng@2021-10-14

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