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ELCAllowedNot stated in the judgment as provided· [2021] KEELC 1652 (KLR)

Ronald Kimeu Kituli v County Government of Machakos [2021] KEELC 1652 (KLR)

Environment and Land Court (Machakos)
8 October 2021
OAO. A. Angote
2,075 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a defendant to amend his defence and counterclaim late, ruling that amendments should be freely allowed where no real prejudice results.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 6th October 2020 in which the Defendant sought leave to file an Amended Defence and Counterclaim out of time in a land dispute over portions of Machakos/Matuu/590. The Defendant claimed he bought two portions from the Plaintiff between May 2002 and January 2004, took possession and developed a bus park in Matuu town, but had inadvertently omitted a counterclaim seeking declaration and protection of his rights. The Plaintiff opposed, arguing the application was defective, that the sale agreement required transfer six months after payment of the last instalment which the Defendant breached, that the counterclaim's measurements did not match the agreement, and that the Defendant had trespassed on an extra 30ft x 100ft portion. Relying on Order 8 Rule 3 of the Civil Procedure Rules and established authority including St. Patrick's Hill School v Bank of Africa, Central Kenya Ltd v Trust Bank Ltd and D. T. Dobie & Company Ltd v Muchina, O. A. Angote, Judge, held that amendments should be liberally allowed where no prejudice is shown and the amendments are consistent with the original pleading. Finding that the proposed amendments raised a genuine triable issue as to how the land was reduced in size and that the Plaintiff had shown no prejudice, the court granted the Defendant leave to file and serve the Amended Defence and Counterclaim within 14 days, with costs in the cause.

Key legal issues

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01

Whether leave should be granted to file an amended Defence and Counterclaim out of time

Holding

Leave granted; the amendments were consistent with the original Defence, raised triable issues, and the Plaintiff showed no prejudice

Reasoning

The court noted that it has a wide discretion under Order 8 Rule 3 to allow amendments at any stage to meet the ends of justice. The proposed amendments brought forth the question of how the land measuring 150ft by 100ft was allegedly reduced, an issue needing proof at trial. Following D. T. Dobie, a defence that can be given life by amendment should not be summarily terminated. The Plaintiff did not demonstrate prejudice or inconsistency with the initial claim.

p. 3

Legal principles established

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  • 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 party can be compensated by costs
  • Under Order 8 Rule 3, the court may at any stage of the proceedings allow any party to amend his pleadings on such terms as to costs or otherwise as may be just

Court orders

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  1. 1.The Defendant is granted leave to file and serve an Amended Defence and counterclaim within 14 days of the Ruling
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure Rules 2010Order 8 Rule 3(1), (2) & (3)
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Limitation ActReferenced generally in the St. Patrick's Hill principles

Cases cited (9)

  • Abdul Karim Khan vs Mohamed Roshan
    (1965) EA. 289 (C.A)
  • Eastern Bakery vs Castelino
    (1958) E.A. 461 (U.)
  • Tildesley vs Harper
    (1878), 10 Ch.D. 296
  • Ochieng and Others vs First National Bank of Chicago
    Civil Appeal Number 147 of 1991
  • St. Patrick’s Hill School Limited vs Bank of Africa Kenya Limited
    [2018] eKLR
  • Harrison C. Kariuki vs Blueshield Insurance Company Ltd
    [2006] eKLR
  • City Clock Limited vs County Clock Kenya Limited & another
    [2020] eKLR
  • Central Kenya Ltd vs Trust Bank Ltd
    [2000] EALR 365
  • D. T. Dobie & Company Ltd vs Muchina
    [1992] KLR
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act; Order 8 Rule 3(1), (2) & (3) 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, "Ronald Kimeu Kituli v County Government of Machakos [2021] KEELC 1652 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1652/eng@2021-10-08

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