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ELCDismissedNot stated in the judgment text (suit filed 3rd June 2017; application dated 5th June 2020)· [2021] KEELC 2121 (KLR)

Ollin Savings & Credit Co-op Society Ltd v Patrick Njiru Kuria [2021] KEELC 2121 (KLR)

Environment and Land Court
23 July 2021
2,545 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused a defendant's attempt to rewrite his defence years later, ruling the changes would cloud the real dispute and unfairly burden the plaintiff.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Kerugoya (E.C. Cherono, ELC Judge) on the Defendant's Notice of Motion dated 5th June 2020 seeking leave to amend his statement of defence to introduce a counterclaim and to join five new parties: John Baptista Kanga, Mark and Bills Holding Ltd, Purity Njambi Muriithi, Mercy Wairimu Muriithi and the County Government of Kirinyaga. The underlying suit, filed on 3rd June 2017 by a registered co-operative society, claims declarations of ownership of leasehold Title No. Wanguru/Township/160, general and special damages of Ksh. 7,500,000 for trespass and demolition, damages for loss of future rental income, interest and a perpetual injunction. The Plaintiff opposed the amendment, arguing inter alia that two proposed parties had already been struck out on 3rd July 2019, that the application was brought about three years late, and that the amendments would complicate the suit. The court reaffirmed the liberal amendment jurisdiction under Section 100 of the Civil Procedure Act and Order 8 of the Civil Procedure Rules, holding that delay alone is not a bar where compensable in costs, and that a defendant may join strangers to a counterclaim under Order 7 Rule 8 as interpreted in Kabuito Contractors Ltd. However, because the proposed amended defence and counterclaim traced an extensive history of dealings with the suit land, introduced numerous new parties and multiple causes of action, the court found it would obscure the real issue in controversy and occasion injustice to the Plaintiff, contrary to Eastern Bakery v Castelino. The application was dismissed with costs to the Plaintiff.

Key legal issues

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01

Whether to grant leave to amend the defence and introduce a counterclaim with additional parties

Holding

Leave refused; the amendments, though procedurally permissible in principle, would cloud the real issue between the parties and cause injustice.

Reasoning

The court accepted the general liberality of the amendment jurisdiction under Section 100 and Order 8, and that a counterclaim may join strangers under Order 7 Rule 8. Delay alone was not fatal. However, the proposed counterclaim traced a long history of transactions, introduced numerous new parties and multiple causes of action, rendering the matter nebulous and prejudicing the Plaintiff. Applying Eastern Bakery v Castelino, the court held the amendments were the antithesis of the purpose of amendments and dismissed the application.

p. 3
02

Whether the three-year delay defeats the application

Holding

Delay alone is not a ground for refusal where it can be compensated by costs.

Reasoning

The Defendant explained the delay by reference to the transfer of the file from Embu ELC to Kerugoya and prior applications by the Plaintiff and Interested Parties. Relying on Central Kenya Ltd v Trust Bank Ltd, the court held that amendments should be liberally permitted unless prejudice is occasioned which cannot be cured by costs. The claim of limitation on the fraud counterclaim was raised but the application ultimately failed on the ground of obscuring the issues.

p. 3

Legal principles established

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  • Amendment of pleadings should generally be allowed where it serves to determine the real question in controversy, and delay alone is not a ground for refusal where compensable in costs
  • Leave to amend will be refused where the amendment would prejudice the opposite party or cause injustice
  • A defendant may, by counterclaim, join parties other than the plaintiff under Order 7 Rule 8 of the Civil Procedure Rules

Court orders

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  1. 1.The Notice of Motion dated 5th June, 2020 is dismissed
  2. 2.Costs of the application awarded to the Respondent/Plaintiff

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 100
  • Civil Procedure Rules, 2010Order 8 Rule 5
  • Civil Procedure Rules, 2010Order 8 Rule 3 (1 and 2)
  • Civil Procedure Rules, 2010Order 7 Rule 8
  • Co-operative Societies ActNot specified

Cases cited (13)

  • Mohammed & Muigai Advocates v Kang'ethe & Co Advocates
    Civil Appeal No.19 of 2004
  • Stanley & Sons Ltd v DT Dobie & Co (T) Ltd and Another
    [1975] E.A. 84
  • Atieno v Omoro
    [1985] KLR 677
  • Eastern Bakery v Castelino
    [1958] EA 461
  • Kenya Ports Authority v East African Power and Lightning Company Limited
    [1982] KLR 410
  • Joseph S. Wafula v Elen Chepkurgat Talam
    [2019] eKLR
  • Central Kenya Limited v Trust Bank Limited
    (2000) 2 EA 365 / [2000] EALR 365
  • Kampala Coach Limited v First Community Bank Limited & Another
    [2016] eKLR
  • Twin Bufallo Safaris Limited v Business Partners International Limited
    (2015) eKLR
  • Joseph Ochieng & 2 others v First National Bank of Chicago
    Civil Appeal No. 149 of 1991
  • Harrison C. Kamau vs Blue Shield Insurance Co. Ltd
    (2006) eKLR
  • Institute for Social Accountability & Another V Parliament of Kenya and 3 Others
    2014 KLR
  • Kabuito Contractors Ltd v David Mereka t/a Mereka & Company Advocates
    [2004] eKLR
Jurisdiction invoked
Section 100 of the Civil Procedure Act (Cap 21) and Order 8 Rules 3 and 5, Order 7 Rule 8 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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Cite this brief

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Cite this brief

Caselaw, "Ollin Savings & Credit Co-op Society Ltd v Patrick Njiru Kuria [2021] KEELC 2121 (KLR)", Case Analysis (2021). Not stated in the judgment text (suit filed 3rd June 2017; application dated 5th June 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2121/eng@2021-07-23

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