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ELCAllowedNotice of Motion dated 7th December, 2020 (in suit filed 17th February, 2015)· [2021] KEELC 3297 (KLR)

Peter Mwangi Kiarie v Elijah Kiplagat Sang & 4 others; Monicah Jeptoo & another (Interested Parties) [2021] KEELC 3297 (KLR)

Environment and Land Court
19 May 2021
2,351 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Defendants and Interested Parties moved the court by Notice of Motion dated 7th December 2020 seeking leave to amend their joint statement of Defence and Counterclaim to reflect that they purchased portions of land parcel L.R. No. 9360 from Jane Wangui Kiarie, the widow and co-administrator of the estate of the late John Geoffrey Kiarie, and to include valuation reports. The Third Party had died on 17th August 2017, her case was discontinued, and the Plaintiff had taken out letters of administration over her estate. The Plaintiff opposed the application as defective, belated, time-barred and prejudicial. The court framed three issues: whether a reasonable case for amendment was made out, whether the amendment would prejudice the Plaintiff, and costs. Applying Order 8 Rules 3 and 5 and Order 1 Rule 10(2) of the Civil Procedure Rules, the court found the amendments reasonable since they concerned matters already alluded to in the filed pleadings, notably the market price of the portions bought, and caused no prejudice as the Plaintiff could file a Reply. The court further directed that the Interested Parties be added as Defendants since they share a common defence and counterclaim with the Defendants, and allowed the Plaintiff time to amend his plaint to reflect his capacity as administrator of the Third Party's estate. The application was allowed with costs in the cause. Judgment delivered virtually at Eldoret on 19th May 2021 by S. M. Kibunja, Judge.

Key legal issues

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01

Whether leave to amend the defence and counterclaim should be granted

Holding

Leave granted; the amendments sought (including market price of the portions and averments relating to the deceased Third Party whose case was discontinued) were already alluded to in filed pleadings and caused no prejudice.

Reasoning

Order 8 Rules 3 and 5 permit amendment at any stage on just terms to determine the real question in controversy. The proposed amendments arise from the same facts already pleaded, namely the purchase of portions of the suit land from the Third Party, now deceased, whose estate the Plaintiff administers. The Plaintiff can respond by filing a Reply, so no prejudice arises.

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02

Whether the Interested Parties should be consolidated as Defendants

Holding

Yes - the court found it unnecessary for the Defendants and Interested Parties to continue participating in different capacities given their common defence and counterclaim.

Reasoning

The pleadings showed the Defendants and Interested Parties have a common defence and counterclaim in respect of their specific portions of the suit land. The court directed that the Interested Parties be added as Defendants in the Amended Plaint, or failing that, in the Amended Defence and Counterclaim, to streamline the proceedings.

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03

Whether the amendment would prejudice the Plaintiff

Holding

No prejudice found; the Plaintiff may file a Reply to the Amended Defence and Defence to the Amended Counterclaim after service.

Reasoning

The court held that since the amendments merely formalise matters already pleaded and the Third Party's case stands discontinued with the Plaintiff now her estate's administrator, the Plaintiff suffers no prejudice and retains full opportunity to respond through further pleadings.

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Legal principles established

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  • A party may be allowed to amend pleadings so as to capture matters already alluded to in existing pleadings where no prejudice results, as the opposing party may reply to the amendments.
  • The court may order amendment and addition of parties as necessary to effectually and completely determine the real questions in controversy.

Court orders

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  1. 1.The Plaintiff directed to file and serve an amended plaint within 21 days reflecting his role as administrator of the estate of the late Jane Wangui Kiarie, with the Interested Parties added among the Defendants
  2. 2.Upon service, the Defendants including Interested Parties to file and serve an Amended Defence and Amended Counterclaim within 21 days after service
  3. 3.Should the Plaintiff fail to amend within 21 days, the Defendants and Interested Parties at liberty to file and serve their Amended Defence and Amended Counterclaim within 21 days, with the Interested Parties added as Defendants; the Plaintiff then at liberty to file an Amended Reply within 21 days after service
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 8 Rule 5
  • Civil Procedure RulesOrder 1 Rule 10(2)
Jurisdiction invoked
Order 8 Rules 3 and 5 and Order 1 Rule 10(2) of the Civil Procedure Rules

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, "Peter Mwangi Kiarie v Elijah Kiplagat Sang & 4 others; Monicah Jeptoo & another (Interested Parties) [2021] KEELC 3297 (KLR)", Case Analysis (2021). Notice of Motion dated 7th December, 2020 (in suit filed 17th February, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3297/eng@2021-05-19

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