Lishamba v Spencon Company Ltd & another (Environment & Land Case 594 of 2014) [2022] KEELC 131 (KLR)
The bottom line
#The Environment and Land Court struck out a 12-year-old land case because the claimant sued no one and her attempted fix was time-barred.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to amend the plaint to substitute the 3rd party as defendant should be granted
The amendment was refused because it introduces a new tort cause of action that is statute barred and would cause injustice to the 3rd party
The court held that the plaintiff had never had any claim against the 3rd party; the original plaint disclosed none. The draft amended plaint merely changed the 3rd party's status from 3rd party to defendant while repeating the same trespass claim accrued in January 2010. Under Section 4(2) of the Limitation of Actions Act, tort claims must be brought within three years; the proposed claim is over 12 years late, and allowing the amendment would compel the 3rd party to defend a statute-barred claim.
Whether the court retains jurisdiction after the withdrawal of the claim against the defendant
The court has no jurisdiction to continue entertaining a suit in which the plaintiff is litigating against no one; the plaint was struck out
The court reasoned that every litigation requires a claimant and a party responding to the claim. Once the plaintiff withdrew her claim against Spencon Company Ltd on October 26, 2020, she was not litigating against anybody; the plaint disclosed no claim against the 3rd party, and the 3rd party had no claim against the plaintiff. The proceedings ought to have ended on October 26, 2020, and the plaint was therefore struck out.
Legal principles established
#- Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice where the other party can be compensated by costs
- A limitation law does not extinguish the suit itself but bars the remedy; when a suit is time barred, the court cannot grant the relief sought
- Third party proceedings are by their nature a claim by a defendant against a third party; a plaintiff acquires no claim against the third party by virtue of such proceedings
- Where the plaintiff has withdrawn its claim against the defendant and discloses no claim against any other party, there are no proper parties and the court lacks jurisdiction to continue entertaining the suit
Court orders
#- 1.The Notice of Motion dated December 10, 2021 is dismissed
- 2.The plaint is struck out as there are no proper parties to the proceedings
- 3.No order on costs both of the application and the suit
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court (suit originally filed in the High Court on October 27, 2010 and later transferred to this court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Sang v Galaiya Properties Ltd & 6 others (Environment & Land Case E028 of 2022) [2024] KEELC 3576 (KLR)[2024] KEELC 3576 (KLR)11 Apr 2024
Cite this brief
#Cite this brief
Caselaw, "Lishamba v Spencon Company Ltd & another (Environment & Land Case 594 of 2014) [2022] KEELC 131 (KLR)", Case Analysis (2022). Not stated in judgment (suit transferred from the High Court and assigned a new case number). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/131/eng@2022-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.