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ELCAllowedNot stated in judgment· [2022] KEELC 122 (KLR)

Ominde v Odongo (Environment & Land Case 300 of 2016) [2022] KEELC 122 (KLR)

Environment and Land Court
6 May 2022
AOANTONY OMBWAYO
2,552 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu (Antony Ombwayo J) determined a Notice of Motion dated 19th April 2018 by the Defendant, Victor Otieno Odongo, seeking leave to amend his Statement of Defence dated 22nd September 2017 to include a counterclaim in a trespass dispute over parcel Kisumu/Nyalenda 'B'/1508. The Defendant alleged that the Plaintiff's title over Kisumu/Nyalenda 'B'/1508 was fraudulently created by altering the Registry Index Map for the Nyalenda 'B' map sheet, extending boundaries of parcel Kisumu/Nyalenda 'B'/564 and hiving off riparian reserve, thereby blocking his access to the lake front and infringing his constitutional right to property under Article 40. The intended counterclaim sought a declaration that parcel 1508 was illegally created on riparian land, mandatory injunction to cancel entries and revert the riparian land, a permanent injunction, and damages. The Plaintiff neither filed a replying affidavit nor submissions. The court set out the amendment principles from Coffee Board of Kenya v Thika Coffee Mills Ltd, applied Order 8 Rules 3 and 5 of the Civil Procedure Rules, and found the amendments necessary to determine the real controversies, with no prejudice to the Plaintiff. The limitation issue was left for the hearing. The application was allowed, with the Defendant ordered to file the amended defence within 14 days and to bear the costs of the application, addressing the delay. Delivered electronically on 6th May 2022 due to COVID-19 restrictions.

Key legal issues

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01

Whether leave to amend the defence to include a counterclaim should be granted

Holding

The amendment was allowed as necessary to determine the real controversies, with no prejudice to the Plaintiff, but costs were awarded to the Plaintiff for the delay.

Reasoning

The court applied Order 8 Rules 3 and 5 of the Civil Procedure Rules and the principles in Coffee Board of Kenya v Thika Coffee Mills. It noted the Plaintiff did not oppose the application, that the amendments would help determine the controversies surrounding the suit property, and that the Plaintiff would suffer no prejudice. Delay was addressed by an award of costs.

p. 5
02

Whether the counterclaim is time barred

Holding

The court deferred the limitation question to the hearing of the suit rather than refusing the amendment on that basis.

Reasoning

The court observed that whether the counterclaim is barred by limitation is a matter that can be determined at the hearing of the suit, so it did not bar the amendment on that ground.

p. 5

Legal principles established

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  • Amendments should be allowed which are necessary for determination of the real controversies in the suit, provided no prejudice is caused to the other side which cannot be compensated by costs

Court orders

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  1. 1.The Notice of Motion dated 19th April 2018 is allowed
  2. 2.The Defendant is ordered to file his amended Statement of Defence within 14 days from the date of the ruling
  3. 3.The Defendant to pay the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e)
  • Civil Procedure RulesOrder 8 Rules 1, 3, 5, 6; Order 51 Rule 1
  • Constitution of Kenya, 2010Article 40; Article 67

Cases cited (4)

  • Ramco Investments Limited vs Nairobi City Water & Sewerage Company
    (2017) eKLR
  • Coffee Board of Kenya Vs Thika Coffee Mills Limited & 2 Others
    [2014] eKLR
  • Rael Moraa Ondika Vs Swanya Limited & Anor
    [2020] eKLR
  • Management Committee of AGC Riverside Church Vs Mosonik & Anor
    [2017] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; Order 8 Rules 1, 3 & 5 and Order 51 Rule 1 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, "Ominde v Odongo (Environment & Land Case 300 of 2016) [2022] KEELC 122 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/122/eng@2022-05-06

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