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ELCPartially AllowedNot stated in the judgment· [2022] KEELC 833 (KLR)

Abdilahi Muigai Muiruri v Faith Nyokabi [2022] KEELC 833 (KLR)

Environment and Land Court
15 March 2022
EWE. K. Wabwoto
1,272 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed a plaintiff to amend his land dispute claim and add a key party, ruling that procedural mistakes should not block justice.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi on a notice of motion dated 2nd February 2022 by the Plaintiff, seeking leave to amend his plaint, to join Umoja III C Residence Organization as 2nd Defendant, and to have the draft amended plaint with accompanying witness statements and documents deemed filed and served. The underlying suit, commenced by plaint on 31st March 2016, concerns plots 170 and 171 within L.R No. 11379/3 allegedly allocated to the Plaintiff by Kiambu Dandora Farmers Company Limited in 2006, and a trespass by the Defendant's agents in March 2016 that allegedly demolished part of a perimeter wall. The Plaintiff sought a declaration of ownership, a permanent injunction, and restraints against dealings with the suit property. The Defendant opposed the application through grounds of opposition, arguing it was an abuse of process, defective for want of a notice of change of advocates (the firm on record being Murunga and Associates while the application was filed by MAW Advocates LLP), and that the proposed 2nd Defendant had to be served. The court applied the Court of Appeal's principles in St Patrick's Hill School Ltd v Bank of Africa Kenya Ltd on amendments, held the joinder of the proposed 2nd Defendant crucial with no prejudice to the Defendant, and treated the absence of a notice of change as a curable procedural technicality under Article 159(2)(d). The application was allowed, with the joinder effected, timelines set for filing the amended plaint and pleadings, and costs abiding the suit.

Key legal issues

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01

Leave to amend plaint and join a necessary party

Holding

Amendment and joinder allowed where the proposed party's role is crucial to the determination of the suit and no prejudice is caused to the existing defendant

Reasoning

The court applied the principles in St Patrick's Hill School Ltd v Bank of Africa Kenya Ltd: amendments may be sought at any stage, should be allowed if in good faith, and the defendant can be compensated by costs. The Plaintiff wished to sue Umoja III C Residence Organization because the Defendant allegedly purchased the suit property from it. The court found no prejudice since the Defendant could still challenge the amended pleadings.

p. 2
02

Effect of failure to file notice of change of advocates

Holding

A mere procedural technicality, not fatal, cured by granting leave to file the notice of change

Reasoning

Counsel for the Defendant objected that the application was filed by MAW Advocates LLP when the firm on record was Murunga and Associates, with no notice of change filed. The court accepted counsel Murunga's explanation that he is a partner at MAW Advocates LLP and, guided by Article 159(2)(d) and the de minimis principle, treated the omission as a curable technicality.

p. 2

Legal principles established

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  • The power to allow amendments is intended to enable the court to determine the true substantive merits of the case, and amendments sought in good faith should generally be allowed even if late, provided costs can compensate the other side
  • Absence of a notice of change of advocates is a procedural technicality curable in the interest of substantive justice under Article 159(2)(d)

Court orders

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  1. 1.The Plaintiff is granted leave to amend the Plaint
  2. 2.Umoja III C Residence Organization joined to the suit as the 2nd Defendant
  3. 3.The amended plaint to be filed and served on the 1st and 2nd defendants within 7 days from the date of the ruling
  4. 4.The Plaintiff granted leave to file and serve his notice of change of advocates simultaneously with the amended plaint
  5. 5.Upon service the Defendants granted 15 days to file and serve their pleadings in the suit
  6. 6.Costs shall abide the suit

Authorities

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Legislation

  • Limitation ActReferenced in the principles on amendments
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (2)

  • St Patrick's Hill School Ltd vs. Bank of Africa Kenya Ltd
    [2018]
  • Kenya Ports Authority -vs Kenya Power and Lighting Company Limited
    (2012) eKLR
Jurisdiction invoked
Inherent powers of the court to allow amendment and joinder; Article 159(2)(d) of the Constitution invoked as guiding principle

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, "Abdilahi Muigai Muiruri v Faith Nyokabi [2022] KEELC 833 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/833/eng@2022-03-15

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