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ELCDismissedNot stated in excerpt (ELC Suit, Kisii)· [2021] KEELC 2233 (KLR)

Richard Omare Moreka (Suing as the Administrator of the estate of the late Eresta Mong’ina Moreka) v Peter Mabuka & 9 others [2021] KEELC 2233 (KLR)

Environment and Land Court
28 July 2021
JOJ. M. Onyango
2,021 words in judgment
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The bottom line

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A Kenyan land court refused a defendant's late attempt to rewrite his counterclaim after the plaintiff had already testified, and ordered him to pay costs.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kisii (J. M. Onyango, J) on an application dated 18th January 2021 by the 1st Defendant seeking leave to amend his Counterclaim in a land dispute over parcel BASSI BOGETAORIO II/2036, registered in the name of the late Eresta Mong'ina Moreka. The Plaintiff had sued for a permanent injunction and a declaration that the suit property is private land; the 1st Defendant counterclaimed for an injunction pending succession proceedings, asserting ancestral rights to half the land. The 1st Defendant sought to remove the injunction prayer and instead seek a declaration that he holds a half share and an order compelling transfer. The Plaintiff opposed, arguing the matter was part-heard, that the amendment was an afterthought and prejudicial. The court identified one issue: whether leave to amend should be granted. Applying Order 8 Rule 3 and the principles in Eastern Baker v Castelino, Shah v Aperit Investments and Central Kenya Ltd v Trust Bank Ltd, the court held that although amendments may be sought at any stage, the discretion must be exercised judicially and refused where injustice cannot be compensated by costs. The 1st Defendant had known the facts since 2015, gave no explanation for the delay through pre-trial, and the amendment appeared designed to fill gaps exposed by the Plaintiff's testimony; allowing it would force the Plaintiff to discard his evidence. The application was dismissed with costs to the Plaintiff/Respondent.

Key legal issues

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01

Whether leave to amend a counterclaim should be granted at a late, part-heard stage

Holding

Leave refused. Although the court has a wide discretion under Order 8 Rule 3 to allow amendments at any stage, the discretion must be exercised judicially and was withheld because the proposed amendments sought to fill gaps evident only after the Plaintiff testified, and allowing them would force the Plaintiff to discard his evidence, occasioning injustice not compensable by costs.

Reasoning

The court applied the Eastern Baker v Castelino principles and Central Kenya Ltd v Trust Bank Ltd, holding amendments should be freely allowed absent prejudice. The 1st Defendant knew the facts since 2015 and did not explain the delay through pre-trial. Allowing amendment of a part-heard matter would render the Plaintiff's evidence redundant and substitute a new claim, meeting the exception where injustice cannot be cured by costs.

p. 3

Legal principles established

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  • Amendments to pleadings may be sought at any stage but will be refused where they would occasion prejudice or injustice to the other party which cannot be compensated by costs.

Court orders

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  1. 1.The 1st Defendant's application dated 18th January, 2021 seeking leave to amend the Counterclaim is dismissed with costs to the Plaintiff/Respondent.

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure Act/RulesOrder 11
  • Constitution of KenyaArticle 64

Cases cited (3)

  • Shah –vs- Aperit Investments S. A & Another
    [2002] 1 KLR 130
  • Eastern Baker Vs Castelino
    (1958) EA 461
  • Central Kenya Ltd Vs Trust Bank Ltd & 5 others
    (2000) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes in Kisii County; application under Order 8 Rule 3 of the Civil Procedure Rules

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, "Richard Omare Moreka (Suing as the Administrator of the estate of the late Eresta Mong’ina Moreka) v Peter Mabuka & 9 others [2021] KEELC 2233 (KLR)", Case Analysis (2021). Not stated in excerpt (ELC Suit, Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2233/eng@2021-07-28

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