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ELCDismissedNotice of Motion dated 9th December, 2020 (originating proceedings concerning land parcel Kalama/Katanga/629)· [2022] KEELC 583 (KLR)

Stephen Kimeu Nguku v Kioko Maundu & 4 others; Land Registrar, Machakos (Interested Party) [2022] KEELC 583 (KLR)

High Court of Kenya
4 April 2022
COCHRISTINE OCHIENG
1,436 words in judgment
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The bottom line

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The High Court in Machakos refused to let a landowner amend his case to relitigate a boundary dispute that courts had already decided twice.

What this practically means

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Executive summary

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This was a ruling on the Applicant's Notice of Motion dated 9th December, 2020, brought under Order 1 Rule 10 and Order 8 Rules 3, 4 and 5 of the Civil Procedure Rules, seeking leave to amend an Originating Summons he had filed in person on 21st July, 2020, to add new parties, prayers and evidence allegedly inadvertently omitted before he instructed counsel. The Respondents opposed through a replying affidavit of Kioko Maundu, contending the application was defective, that the matters sought to be introduced were res judicata, having been determined in the Ruling dated 10th December, 2012 and Judgement dated 16th November, 2018, and that the court lacked jurisdiction over boundary disputes. The sole issue was whether leave to amend should be granted. The court reviewed Order 8 Rules 3 and 5 and the Court of Appeal's guidance in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Ltd on the principles governing amendments. Upon perusing the proposed amendments, the court found the dispute over land parcel Kalama/Katanga/629 had already been heard and determined twice - in Machakos High Court Misc. Application No. 243 of 2006 (Ruling of 10th December, 2012) and Machakos Misc. Application No. 9 of 2018 (Order of 21st May, 2019 directing the Land Registrar and Surveyor to fix the boundary). The proposed 2nd Interested Party, the County Land Surveyor, had already been directed to fix the boundary. The court held the Applicant was abusing the court process by seeking to relitigate determined issues and declined the amendment, disallowing the application with costs in the cause.

Key legal issues

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Whether the Applicant should be granted leave to amend the Originating Summons

Holding

The application for leave to amend was declined because the proposed amendments sought to relitigate issues already determined by courts of competent jurisdiction.

Reasoning

The court set out the legal framework for amendment under Order 8 Rules 3 and 5 and the Court of Appeal's criteria in Elijah Kipngeno Arap Bii. On perusal of the proposed prayers and prior rulings in Machakos Misc. Application No. 243 of 2006 (Ruling of 10th December, 2012) and Machakos Misc. Application No. 9 of 2018 (Order of 21st May, 2019), the court found the boundary dispute over Kalama/Katanga/629 had been determined twice. The proposed 2nd Interested Party (County Land Surveyor) had already been directed to fix the boundary. The proposed amendments were therefore an abuse of process and failed the threshold for amendment.

p. 3

Legal principles established

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  • The court may at any stage of the proceedings allow any party to amend his pleadings on such terms as to costs or otherwise as may be just
  • Even where limitation has expired, the court may grant leave to amend in the circumstances mentioned in subrules (3), (4) or (5) if it thinks just so to do
  • Amendment is to enable the court determine the real question in controversy between the parties or correct any defect or error in the proceedings

Court orders

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  1. 1.The Notice of Motion application dated 9th December, 2020 is disallowed/unmerited
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10
  • Civil Procedure RulesOrder 8 Rules 3, 4 & 5
  • Civil Procedure ActSection 100
  • Civil Procedure Rules (repealed)Order VIA Rule 3

Cases cited (3)

  • Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited
    [2013] eKLR
  • Joseph Ochieng & 2 others vs. First National Bank of Chicago
    Civil Appeal No. 149 of 1991
  • Bullen and Leake & Jacob’s Precedents of Pleading - 12th Edition
Jurisdiction invoked
Order 1 Rule 10 and Order 8 Rules 3, 4 & 5 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, "Stephen Kimeu Nguku v Kioko Maundu & 4 others; Land Registrar, Machakos (Interested Party) [2022] KEELC 583 (KLR)", Case Analysis (2022). Notice of Motion dated 9th December, 2020 (originating proceedings concerning land parcel Kalama/Katanga/629). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/583/eng@2022-04-04

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