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ELCDismissedNotice of motion application dated the June 3, 2022 (suit founded on plaint dated 8th March 2016)· [2022] KEELC 3354 (KLR)

Govedi v Chege & 4 others (Environment and Land Case Civil Suit 18 of 2018) [2022] KEELC 3354 (KLR)

Environment and Land Court
7 July 2022
6,497 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 dismissed a last-minute bid to rewrite a 2016 land suit, warning that unexplained delay and late new claims carry real costs.

What this practically means

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Executive summary

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The plaintiff/applicant, by notice of motion dated 3rd June 2022, sought leave to amend her plaint dated 8th March 2016, a stay of the substantive suit, leave to re-open her case and call additional witnesses (including the 2nd Defendant, previously struck out), and costs. The 3rd, 4th and 5th Defendants opposed via grounds of opposition; the 1st Defendant opposed in submissions. The plaintiff argued the court had an unfettered discretion to allow amendment at any stage, relying on new issues arising from the 5th Defendant's pleadings and discovery of errors by her new advocates. The respondents contended the application was made with inordinate unexplained delay, sought to introduce a new cause of action, was res judicata of prior applications, and was an abuse of process mounted in bad faith on the eve of the defence hearing. Framing four issues, the court found the application mounted with unreasonable and inordinate, unexplained delay and defeated by laches, since the plaintiff's current advocates had been on record since July 2017 and the underlying facts were within her knowledge before she closed her case on 20th September 2020. The proposed amendment, with over 82 additional paragraphs, would alter the character of the suit, introduce new and inconsistent causes of action - including marriage and matrimonial property claims outside the court's jurisdiction - and occasion prejudice not compensable in costs. The application also exhibited mala fides, seeking to revisit issues already decided in an unappealed ruling. The application was dismissed with costs to the Defendants/Respondents.

Key legal issues

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01

Inordinate and unexplained delay in seeking amendment

Holding

The application was defeated by the doctrine of laches; the plaintiff's advocates had been on record since July 2017 and the issues sought to be introduced were known to her before she closed her case on 20th September 2020

Reasoning

The current advocates took over conduct of the matter on 5th July 2017, over three years before the plaintiff testified, so any errors in the plaint were discernible then. The facts now sought to be introduced were within the plaintiff's knowledge from the onset and were covered in documents admitted by consent. No explanation for the six-year delay was offered.

p. 8
02

Whether the proposed amendment alters the character of the proceedings and introduces new causes of action

Holding

The raft of over 82 proposed additional paragraphs would alter and completely change the character of the cause of action, deleting the original claim and replacing it with a new one, including marriage and matrimonial property claims outside the court's jurisdiction

Reasoning

The intended amendments sought to introduce a determination whether a marriage existed between the plaintiff and the 1st Defendant and whether the suit property was matrimonial property. The court held it lacks jurisdiction to determine the existence of marriages or declare property matrimonial, and such amendments would embarrass the parties and create a jurisdictional quagmire.

p. 10
03

Mala fides and conduct of the plaintiff and counsel

Holding

The application exhibited bad faith, being filed shortly before the defence case and seeking to revisit issues already ruled upon, contrary to sections 1A and 1B of the Civil Procedure Act and article 159(2)(b) of the Constitution

Reasoning

The plaintiff had already had an earlier application for further documentary exhibits allowed by consent, had her request for five additional witnesses dismissed in a ruling of 20th September 2020, and now sought to re-open the same issues. The timing on the eve of the defence case suggested an intent to derail the expeditious hearing of the suit.

p. 11
04

Prejudice and injustice not compensable in monetary terms

Holding

Allowing the amendment and re-opening would roll proceedings back to the pre-trial stage of 2016, rendering prior proceedings and judicial time wasted, occasioning grave prejudice not compensable in costs

Reasoning

The defendants would be obliged to file fresh pleadings and take new instructions on completely new issues. The hearing of the plaintiff's case would be rendered useless and further delay would provoke anxiety and mental anguish. Reliance was placed on Catherine Koriko & 3 others v Evaline Rosa on prejudice from amendments.

p. 13

Legal principles established

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  • Amendments must be applied for timeously; an amendment application mounted with unreasonable and inordinate, unexplained delay is defeated by the doctrine of laches
  • An amendment that introduces a completely new cause of action or one at variance with the original cause of action ought to be declined
  • Prejudice and injustice to the other side, not compensable in monetary terms, constitute a ground for declining an application for amendment

Court orders

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  1. 1.The Application dated the 3rd June 2022 is Dismissed with Costs to the Defendants/Respondents
Jurisdiction invoked
Inherent jurisdiction over amendment of pleadings under section 100 of the Civil Procedure Act and Order 8 rules of the Civil Procedure Rules, read with sections 1A and 1B of the Civil Procedure Act and article 159(2)(b) of the Constitution 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, "Govedi v Chege & 4 others (Environment and Land Case Civil Suit 18 of 2018) [2022] KEELC 3354 (KLR)", Case Analysis (2022). Notice of motion application dated the June 3, 2022 (suit founded on plaint dated 8th March 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3354/eng@2022-07-07

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