Waruburu (Suing as the administrator ad Litem of the Estate of Francis Wabururu Njau Deceased) v Kagia & 2 others (Environment & Land Case 750A of 2017) [2022] KEELC 25 (KLR)
The bottom line
#A Kenyan land court allowed a plaintiff to amend his pleadings but refused to 'reinstate' his suit because it was only stayed, not dismissed.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was fit for reinstatement
The prayer for reinstatement failed because the suit was only stayed, not dismissed, and remains in existence.
Order 12 Rule 6 CPR applies to suits dismissed under that Order, e.g. for failure to prosecute or non-attendance. None of those scenarios was demonstrated. The suit was merely stayed pending Milimani ELC No. 751 of 2003, which has since abated. Since the suit still exists, reinstatement would be an exercise in vain; the prayer was unnecessary and failed.
Whether the plaint should be amended
Amendment allowed under Order 8 Rules 3 and 5 and Section 100 CPA, with corresponding leave to defendants to amend.
Amendments may be made at any time before judgment. The Milimani suit, whose pendency had stayed this suit, has abated, so the issues can no longer be canvassed there. Amendments are allowed liberally to enable determination of the real questions in controversy. To level the playing field, defendants were given corresponding leave to amend.
Legal principles established
#- Reinstatement presupposes a suit that was dismissed; a merely stayed suit cannot be reinstated.
- Amendment of pleadings is allowed liberally at any stage before judgment so as to enable the court to determine the real issues in controversy.
Court orders
#- 1.The application is allowed in terms of prayers 2 to 5
- 2.Leave granted to the plaintiff to amend his plaint, the amended plaint deemed duly filed upon payment of requisite fees
- 3.Defendants granted corresponding leave to amend their pleadings if need be
- 4.No order as to costs
- Jurisdiction invoked
- Sections 3A and 100 Civil Procedure Act; Order 8 Rules 3, 4, 5 & 7 and Order 51 Rule 1 Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waruburu (Suing as the administrator ad Litem of the Estate of Francis Wabururu Njau Deceased) v Kagia & 2 others (Environment & Land Case 750A of 2017) [2022] KEELC 25 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/25/eng@2022-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.