Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELCA Case No. 19 of 2019· [2021] KEELC 3614 (KLR)

Haman Mbimwa Anduku v Alphonse Mackenzie [2021] KEELC 3614 (KLR)

Environment and Land Court
20 April 2021
NMN.A. Matheka
1,379 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ruled that a landowner can amend his defence late, even mid-trial, when it helps the court resolve the real dispute.

What this practically means

#

Executive summary

#
This was a first appeal to the Environment and Land Court at Kakamega against a ruling of Hon Malesi SRM delivered on 18 June 2019 in Kakamega MCL & E No. 3 of 2017, dismissing the defendant's (appellant's) application to amend his statement of defence. The appellant argued that the law on amendment requires only attachment of the pleading being amended, that the magistrate wrongly insisted on supporting documents, and wrongly found mala fides. The respondent, relying on Apungu Arthur Kibira, submitted that the magistrate had exercised discretion properly and no error of law was shown. The court reviewed the lower court record: suit filed 15 December 2017, defence filed 20 December 2017, plaintiff testified on 13 November 2018 and closed his case, and the amendment application introducing fraud and a counterclaim came thereafter. The court set out the power to amend under Section 100 of the Civil Procedure Act and Order 8 Rule 5, and adopted the principles in AAT Holdings, Harrison C. Kamau and Joseph Ochieng: amendments may be sought at any stage and should generally be allowed if made in good faith, provided costs can compensate the other side. Noting the appellant was unrepresented when he filed his defence and that the amendment was necessary to determine the real question in controversy, the court allowed the appeal and the application dated 18 March 2019 as prayed, permitting the amended defence, with no orders as to costs.

Key legal issues

#
01

Scope of the court's discretion to amend pleadings at a late stage

Holding

The appeal succeeded; the trial magistrate erred in refusing the amendment, which was made in good faith and was necessary to determine the real issue (alleged fraud)

Reasoning

Section 100 of the Civil Procedure Act and Order 8 Rule 5 give the court power to amend at any time to determine the real question in controversy. Although the plaintiff had testified and closed his case, the defendant was unrepresented when he filed his defence, the application was made in good faith, and the amendment introduced fraud and a counterclaim going to the merits. Costs can compensate the other side, and justice in an emotive land matter favours allowing the amendment.

p. 2

Legal principles established

#
  • The court's power to allow amendment of pleadings may be exercised at any stage of the proceedings and should generally be allowed if made in good faith, provided costs can compensate the other side
  • An amendment necessary for determining the real question in controversy should be allowed; amendment applications require only the pleading to be amended, not supporting documents

Court orders

#
  1. 1.The application dated 18th March 2019 is allowed as prayed
  2. 2.The appellant/defendant is allowed to file an amended defence
  3. 3.No orders as to costs on the appeal

Authorities

#

Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 8, Rule 5
  • Constitution of KenyaArticle 159

Cases cited (6)

  • G.I. Baker Ltd vs. Medway Building and Supplies, Ltd.
    (1958) 3 All ER 540
  • Republic vs. District Land Registrar, Uasin Gishu & Another
    (2014) eKLR
  • Apungu Arthur Kibira vs. Independent Electoral & Boundaries Commission & 3 others
    (2019) eKLR
  • AAT Holdings Limited vs Diamond Shields International Ltd
    (2014) eKLR
  • Harrison C. Kamau vs Blue Shield Insurance Co. Ltd
    (2006) eKLR
  • Joseph Ochieng & 2 Others vs First National Bank of Chicago
    Civil Appeal No. 149 of 1999
On appeal from
Principal Magistrates' Court (Kakamega)
Kakamega MCL & E No. 3 of 2017
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Act over a ruling of the magistrates' court (Section 100 Civil Procedure Act; Order 8 Rule 5 Civil Procedure Rules engaged)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Haman Mbimwa Anduku v Alphonse Mackenzie [2021] KEELC 3614 (KLR)", Case Analysis (2021). ELCA Case No. 19 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3614/eng@2021-04-20

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