Bomet Technical Institute Limited t/a Lomu Investments v Joel Rutoh & 21 others; County Government of Bomet (Interested Party) [2021] KEELC 4755 (KLR)
The bottom line
#A Kericho court allowed a party to be added to a land dispute years after filing, saying fairness matters more than delay when compensation for costs can fix any prejudice.
What this practically means
#Executive summary
#Key legal issues
#Whether amendment to join the Board of Management, St. Michaels Primary School, Bomet should be allowed
The amendment was allowed because the proposed party was expressly named by the interested party as an intended beneficiary under the counter-claim, and joinder was necessary for effectual and conclusive determination of the matter.
The court found the proposed party was mentioned in the interested party's counter-claim as an intended beneficiary though not a party to the suit or counter-claim. Since the plaintiff claimed the property, joinder was plain and obvious. Only one witness had testified, so it was not too late. Allowing the amendment avoided multiplicity of proceedings and any prejudice was compensable in costs, serving the interest of justice.
Whether the application was brought after inordinate delay and was an abuse of process
No inordinate delay was found; time was properly reckoned from the counter-claim that first mentioned the proposed party, and the case was at an early stage of hearing.
Although the suit was filed in 2012, the interested party only filed its response with a counter-claim in 2019, and the counter-claim first identified the proposed party as a beneficiary. With only one witness heard, the court held it was not too late to amend and that the proposed amendment was neither immaterial, useless nor merely technical.
Legal principles established
#- The court has a wide discretion to allow amendments to determine the real question in dispute and do substantial justice, exercisable at any stage but within reasonable time, provided costs can compensate the other side.
- Amendments cannot change the character of the suit and will not be allowed where aimed at abusing the court process.
- An injury compensable by costs is not an injustice, and amendments avoiding multiplicity of proceedings should be allowed.
- Joinder should be allowed where parties seek rights or reliefs arising out of the same acts or transactions or where common questions of law or fact would arise.
Court orders
#- 1.The plaintiff is granted leave to amend its plaint as set out in the draft amended plaint
- 2.Costs of the application to be paid to the respondents and the interested party
- Jurisdiction invoked
- Order 8 rule 3 of the Civil Procedure Rules, 2010 and all other enabling law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bomet Technical Institute Limited t/a Lomu Investments v Joel Rutoh & 21 others; County Government of Bomet (Interested Party) [2021] KEELC 4755 (KLR)", Case Analysis (2021). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4755/eng@2021-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.