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ELCAllowedNot stated in the judgment (Originating Summons dated 20th May 2020, filed 21st May 2020)· [2022] KEELC 971 (KLR)

Malakwen Arap Chobe (Suing as the administrator ad litem of the estate of Kipchobe Arap Murgor deceased) v David Mibei [2022] KEELC 971 (KLR)

High Court of Kenya at Nakuru
10 March 2022
LOL. A. Omollo
3,146 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's High Court allowed an adverse possession claimant to amend his case and add the registered owner, ruling honest mistakes in pleadings can be fixed.

What this practically means

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Executive summary

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This ruling determines the Plaintiff/Applicant's Notice of Motion dated 15th November 2021 seeking leave to amend his Originating Summons dated 20th May 2020 in an adverse possession claim over land parcel NAKURU/OLENGURUONE/AMALO/310. The Plaintiff sought declarations under Section 38 of the Limitation of Actions Act, including registration as proprietor and an order that the Deputy Registrar execute transfer documents. He sought to join Zakeo Gichaga Moigo (allegedly deceased, in whose name the title stands) as 2nd Defendant, contending he only learned of the registration from the Defendant's response, and that delay was caused by the Land Registrar's refusal to issue a certified green card. The Defendant opposed, arguing inordinate and unexplained delay, that the Originating Summons had been converted to a Plaint by earlier rulings of 27th July 2020 and 8th December 2020, that amendments would cause a complete overhaul of pleadings, and that joining a deceased person's estate would embarrass a fair trial and offend natural justice. Applying Order 8 of the Civil Procedure Rules and the authorities on amendment (Ochieng v First National Bank of Chicago; Tildesley v Harper; Eastern Bakery v Castelino), the court found the omission inadvertent, the application made in good faith, and no prejudice to the Defendant since the matter had not proceeded to hearing and the Defendant retained liberty to amend. The court declined to address the Defendant's other complaints, reserving them for trial. Leave to amend was granted, the amended summons deemed filed upon payment of fees, the Defendant given 14 days to amend his defence, service on the 2nd Defendant directed, and costs of the application made to abide the main suit.

Key legal issues

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01

Whether leave to amend the Originating Summons to join the registered owner (Zakeo Gichaga Moigo) should be granted.

Holding

The application was allowed; the failure to include the proposed 2nd Defendant was inadvertent, the application was made in good faith, and the amendment causes no prejudice as the matter has not proceeded to hearing.

Reasoning

The court applied Order 8 Rule 1 of the Civil Procedure Rules and the principles in Ochieng v First National Bank of Chicago, Tildesley v Harper and Eastern Bakery v Castelino, which favour allowing amendments made in good faith and timeously, provided the other side can be compensated by costs. The Plaintiff explained the delay as occasioned by difficulty obtaining the green card from the Lands Office. The court found the omission inadvertent and held the Defendant could amend his pleadings and raise any other complaints at the hearing.

p. 5

Legal principles established

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  • Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice, since injustice can be compensated by costs.
  • Leave to amend should be granted unless the applicant is acting mala fide or the blunder causes injury not compensable by costs.

Court orders

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  1. 1.The Plaintiff is granted leave to amend his originating summons.
  2. 2.The annexed amended originating summons be deemed duly filed on payment of requisite court fees.
  3. 3.The Defendant/Respondent is granted corresponding leave to amend, file and serve his amended defence within 14 days.
  4. 4.The amended originating summons and summons to enter appearance shall be served on the 2nd Defendant within 14 days and an affidavit of service filed.
  5. 5.The cost of this application to abide the outcome of the main suit.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 27
  • Civil Procedure Rules 2010Order 8 Rules 1, 3, 5; Order 11; Order 51 Rule 1
  • Limitation of Actions ActSection 38

Cases cited (3)

  • Ochieng and Others v First National Bank of Chicago
    Civil Appeal Number 147 of 1991
  • Tildesley v Harper
    (1878), 10 Ch.D. 296
  • Eastern Bakery v Castelino
    (1958) E.A. 461 (U.)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 8 Rules 3 and 5, Order 51 Rule 1 of the Civil Procedure Rules 2010

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, "Malakwen Arap Chobe (Suing as the administrator ad litem of the estate of Kipchobe Arap Murgor deceased) v David Mibei [2022] KEELC 971 (KLR)", Case Analysis (2022). Not stated in the judgment (Originating Summons dated 20th May 2020, filed 21st May 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/971/eng@2022-03-10

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