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ELCPartially AllowedNot stated in the extract· [2021] KEELC 4755 (KLR)

Bomet Technical Institute Limited t/a Lomu Investments v Joel Rutoh & 21 others; County Government of Bomet (Interested Party) [2021] KEELC 4755 (KLR)

Environment and Land Court
26 February 2021
1,837 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, Bomet Technical Institute Limited T/A Lomu Investments, moved the Environment and Land Court at Kericho by notice of motion under Order 8 rule 3 of the Civil Procedure Rules, 2010 seeking leave to amend its plaint to join the Board of Management, St. Michaels Primary School, Bomet as a proposed 23rd defendant, with costs in the cause. The suit property is Plot No. Bomet Township/270, claimed by the plaintiff against twenty-two defendants, with the County Government of Bomet as interested party. The defendants opposed through grounds of opposition and submissions, alleging inordinate delay, afterthought, prejudice, wrong invocation of the law and abuse of process, and suggesting a fresh suit instead. The interested party likewise opposed, asserting the application was prompted by cross-examination and that the plaintiff had always known of the proposed party. Kaniaru J held that the counter-claim filed by the interested party in 2019 expressly named the proposed party as an intended beneficiary, making its joinder plain and obvious for effectual and conclusive determination. There was no inordinate delay since time ran from the counter-claim, and only one witness had testified. The court affirmed its wide discretion to allow amendments at any stage within reasonable time, so long as prejudice is compensable in costs and the suit's character is not altered. Allowing the amendment would avoid multiplicity of proceedings and reduce litigation costs. The application was allowed with costs of the application payable to the respondents and the interested party.

Key legal issues

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01

Whether amendment to join the Board of Management, St. Michaels Primary School, Bomet should be allowed

Holding

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.

Reasoning

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.

p. 2
02

Whether the application was brought after inordinate delay and was an abuse of process

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The plaintiff is granted leave to amend its plaint as set out in the draft amended plaint
  2. 2.Costs of the application to be paid to the respondents and the interested party

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 8 rule 3
  • Civil Procedure Rules, 2010Order 10 rule 2

Cases cited (14)

  • Pius Mbugua Ngugi & 2 Others v Chief Land Registrar & 7 Others
    (2018) eKLR
  • Thomas Magut Sambu & Another v County Government of Kericho & Another
    (2019) eKLR
  • Josiah Magena v Wakenya Pamoja Sacco Society Ltd
    ELRC Cause No. 510 of 2014, Nairobi
  • Suleiman v Karasha
    (1989) eKLR
  • Communications Commission of Kenya & 4 Others v Royal Media Services & 7 Others
    (2014) eKLR
  • Lochab Brothers Limited v Peter Amulama
    (2014) eKLR
  • Elijah Kipngenjo arap Bii v Kenya Commercial Bank Limited
    (2013) eKLR
  • Mowa Publishers Limited & Another v AG & Another
    (1991) KLR 46
  • Kyalo v Bayusuf Brothers Limited
    Civil Appeal No. 38 of 1983
  • Peter Letotin Lemoosa v Raeli Chepngetich Langat & 5 Others
    (2017) eKLR
  • Merry Beach Limited v Barclays Bank of Kenya and another
    HCC No. 5 of 2014, Malindi (2018) eKLR
  • Joseph Ochieng & 2 Others v First National Bank of Chicago
    Civil Appeal No. 149 of 1991
  • Eastern Bakery v Gastellino
    (1958) EA 461
  • Lucy Nungari Ngigi & Others v National Bank of Kenya Limited
    HCC No. 517 of 2014, Nairobi (2015) eKLR
Jurisdiction invoked
Order 8 rule 3 of the Civil Procedure Rules, 2010 and all other enabling law

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, "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.