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ELCAllowedNot stated in the judgment· [2022] KEELC 3791 (KLR)

Nyamai & 291 others v South Eastern University College (Environment & Land Case E001 of 2021) [2022] KEELC 3791 (KLR)

Environment and Land Court
21 June 2022
1,570 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 land dispute parties to fix a wrong land reference number in their court papers, showing honest errors can be corrected cheaply.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kitui determines a Notice of Motion dated 3rd December 2021 brought under Rule 3 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking leave to amend a Notice of Motion and Originating Summons dated 19th October 2021. The Applicants sought to correct a typographical error describing the suit land as LR No. 13629 instead of LR No. 13529. Counsel Francis Kalwa apologised for the innocent mistake, stated the application was brought without delay, and submitted that no new cause of action was introduced. The Respondent, a public institution developing its main campus, opposed the amendment, alleging the Applicants had already filed and served amended pleadings without leave, that the affidavit confirming the wrong number was sworn by their representative, and that allowing the amendment would cause irreparable prejudice not compensable by costs. The court noted that the improperly filed amended documents had already been expunged on 23rd November 2021, leaving only the application for leave with attached drafts on record. Applying Order 8 Rule 3 and the established principle that amendments sought before hearing should be freely allowed if the other side can be compensated by costs, the court found the typographical explanation credible, the application timely, and the amendment central to the suit. It also held the amendment did not prove occupation of the land nor occasion irreparable damage. Leave to amend both documents was granted, with filing and service within seven days, liberty to the Respondent to reply, and costs of the application awarded to the Respondent.

Key legal issues

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01

Leave to amend pleadings to correct a typographical error in a land reference number

Holding

Leave granted; the explanation of a typographical error was credible and sufficient, the application was timely, and the amendment went to the core of the suit

Reasoning

The court found the Applicants' explanation credible, noted the application was filed before close of pleadings, and held that proceeding on a wrong land reference number would defeat the purpose of the suit. The amendment did not introduce a new cause of action.

p. 3
02

Whether the amendment would cause irreparable damage not compensable by costs

Holding

No; the change of land reference number does not itself prove the Applicants' occupation of the land, which remains an issue for trial

Reasoning

The court held the amendment merely corrects the land reference number and does not establish the Applicants' claim of occupation, which is still to be proved at hearing; any prejudice is compensable by costs.

p. 3
03

Whether amended pleadings had been filed without leave

Holding

The offending amended documents had already been expunged from the record; only the application for leave with attached drafts remained properly on record

Reasoning

The court noted that on 23rd November 2021 the Applicant withdrew the earlier application and the amended originating summons effected without leave was expunged, which prompted the present application.

p. 3

Legal principles established

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  • Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs
  • Whether an amendment should be granted is a matter for the discretion of the trial judge guided by where justice lies

Court orders

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  1. 1.The Applicant is granted leave to amend the Notice of Motion dated 19th October 2021 in terms of the annexed draft
  2. 2.The Applicant is granted leave to amend the Originating Summons dated 19th October 2021 in terms of the annexed draft
  3. 3.The two amended documents to be filed and served within seven days from the date of the ruling
  4. 4.The Respondent is at liberty to file any further pleadings in reply to the Amended Notice of Motion and Originating Summons
  5. 5.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesRule 3; Order 8 Rule 3; Order 8 Rule 5(1)

Cases cited (7)

  • City Clock Ltd v County Clock Kenya Ltd & Another
    HCC No.6 of 2016 (2020) eKLR
  • Ochieng & Others v First National Bank of Chicago
    Civil Appeal No.147 of 1991
  • St. Patrick's Hill School Limited v Bank of Africa Kenya Limited
    (2018) eKLR
  • Eastern Bakery v Castelino
    [1958] EA 461
  • Central Kenya Ltd v Trust Bank Ltd & 5 others
    [2000] eKLR
  • Joseph ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago
    [1995] eKLR
  • Ketteman v Hansel Properties Limited
    (1988) 1 ALL ER 62
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Rule 3 of the Civil Procedure Rules; Order 8 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, "Nyamai & 291 others v South Eastern University College (Environment & Land Case E001 of 2021) [2022] KEELC 3791 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3791/eng@2022-06-21

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