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ELCAllowedApplication dated 16th June 2021 (Malindi)· [2022] KEELC 1606 (KLR)

Priscillah Kagwiria Mugambi & another v Doris Kache Kaingi [2022] KEELC 1606 (KLR)

Environment and Land Court
10 February 2022
MOM.A. ODENY
849 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a defendant to amend her land dispute defence mid-case, confirming amendments are freely allowed before judgment if made promptly and in good faith.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Malindi determined a notice of application dated 16th June 2021 by the Defendant, Doris Kache Kaingu, seeking leave to amend her statement of defence dated 21st September 2020 to include a counter-claim. The Defendant deponed that the Plaintiffs leased the suit premises under a lease agreement dated 20th December 2017 at a monthly rent of Kshs. 100,000, and that rent accruing since 2018 totalled Kshs. 4,400,000, an issue omitted from the original defence. The application was canvassed by written submissions. Counsel for the Defendant relied on Order 8 rule 5 of the Civil Procedure Rules 2010 and authorities establishing the court's liberal discretion to allow amendments, submitting that the amendment would not alter the nature of the claim and that any alleged prejudice must be proved. The Plaintiff/Respondent opposed, deponing that the lease was nullified and replaced by an agreement for sale dated 5th March 2018, and argued the application was brought after undue delay and was intended to obstruct proceedings. The court framed a single issue: whether the application for amendment of defence had merit. Noting that the matter had not yet gone for pre-trial conference, the court held the application was made without undue delay and in good faith, that no prejudice would be occasioned since the Plaintiff could respond to the amended pleadings, and allowed the application as prayed. The Defendant was to file and serve the amended defence and counter-claim within 14 days, with the Plaintiff granted 14 days upon service to respond. No costs order is stated in the ruling.

Key legal issues

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01

Whether the Defendant should be granted leave to amend the statement of defence and counterclaim

Holding

Yes; the application was made without undue delay, in good faith, and no prejudice would be occasioned to the Plaintiff.

Reasoning

Order 8 Rule 5(1) confers a wide discretion on the court to allow amendment of pleadings at any stage, even suo motu. The matter had not yet gone for pre-trial conference, so the amendment was made timeously and in good faith. If allowed, the opposing party retains the opportunity to respond to the amended pleadings, so no prejudice arises. Relying on Court of Appeal authority, parties have the right to amend pleadings at any stage before judgment and courts should liberally allow such amendments.

p. 2

Legal principles established

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  • The court has a wide discretion to allow amendment of pleadings at any stage of the proceedings, to be exercised judiciously, and amendments should be allowed if made timeously and in good faith absent prejudice.

Court orders

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  1. 1.Leave granted to the Defendant to amend the statement of defence dated 21st September 2020 as per the draft amended defence and counterclaim
  2. 2.Defendant to file and serve the amended defence and counterclaim within 14 days
  3. 3.Plaintiff granted leave to file a response within 14 days upon service

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 8 rule 5
  • Civil Procedure RulesOrder 21 [1]

Cases cited (6)

  • Diamond Trust Bank v Tchui Data Limited & 3 Others
    [2006] eKLR
  • Samera Aziz (Suing as the Administrator of the Estate of Mohamed Bashir Merajdin Ahmed Bux) v Douglas Mwangi Muteru & others
    [2020] eKLR
  • D. Chandulal K. Vora & Co. Ltd v Kenya Revenue Authority
    [2017] eKLR
  • KASAM B BANK OF BARODA (KENYA)
    (2002) eKLR
  • Consolidated Bank of Kenya LTD & Another
    [2016) eKLR
  • DAVID JONATHAN CRANTHAM & ANOTHER v NATIONAL SOCIAL SECURITY FUND
    [2007] eKLR
Jurisdiction invoked
Order 8 rule 5 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, "Priscillah Kagwiria Mugambi & another v Doris Kache Kaingi [2022] KEELC 1606 (KLR)", Case Analysis (2022). Application dated 16th June 2021 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1606/eng@2022-02-10

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