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ELCDismissedEnvironment & Land Case 224 of 2021· [2022] KEELC 13348 (KLR)

Marete v Mwidau & another

Environment and Land Court
27 September 2022
NMN. A. Matheka
1,993 words in judgment
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The bottom line

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A Kenyan court refused a landowner's late attempt to add a trust claim to her lawsuit, warning that last-minute changes to pleadings can backfire badly.

What this practically means

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Executive summary

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The applicant, Jane Gakii Marete, moved the Environment and Land Court at Mombasa by notice of motion dated 12th May 2022 under Sections 3A and 100 of the Civil Procedure Act, Order 8 Rules 3 and 5 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, and Article 159 of the Constitution, seeking leave to amend her plaint in terms of a draft Amended Plaint, priority hearing over the 1st Defendant's application dated 17th March 2022, and costs in the cause. She argued the amendments captured all real issues in controversy, arose from the same facts, and caused no prejudice. The 1st Defendant opposed, contending the relationship was purely contractual under a 1998 Agreement of Sale he alleged was forged, that the trust and estoppel claims were new, belated afterthoughts, and that the suit, filed 23 years after the contract, was time barred. The 2nd Defendant similarly said the amendments sought to fill gaps and introduce a new cause of action in a time-barred suit. The court, applying the principles in Institute for Social Accountability, Central Kenya Ltd and AAT Holdings, held the discretion to allow amendments is wide but must be exercised judicially. It found the proposed amendment introduced a new trust cause of action substantially different in character, was an afterthought given prior related suits, and evidenced bad faith. The application was dismissed with costs.

Key legal issues

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01

Whether leave to amend the plaint should be granted

Holding

Refused; the proposed amendment introduces a new and substantially different cause of action (trust) and is an afterthought made in bad faith given prior related suits.

Reasoning

The court set out the principles from Central Kenya Ltd and AAT Holdings: amendments are freely allowed to determine the real questions in controversy, provided there is no undue delay, no new or inconsistent cause of action, no affected vested rights and no uncompensatable prejudice. The draft amendment introduced a trust claim not previously pleaded in this or prior suits concerning the same subject matter, justifying refusal.

Legal principles established

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  • The discretion to allow amendment of a plaint is wide and unfettered but must be exercised judicially on defined principles; amendments introducing a new cause of action substantially different in character, made after undue delay or in bad faith, should be refused.

Court orders

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  1. 1.The application dated 12th May 2022 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 3A, 100
  • Civil Procedure Rules, 2010Order 8 Rules 3 and 5; Order 51 Rule 1
  • Constitution of KenyaArticle 159

Cases cited (3)

  • Institute for Social Accountability & another vs Parliament of Kenya & 3 others
    (2014) eKLR

    Object of amendment of pleadings and conditions for allowing amendments

  • Central Kenya Ltd vs Trust Bank & 4 Others
    CA No. 222 of 1998

    Guiding principle that amendments should be freely allowed absent prejudice or injustice not compensable in costs

  • AAT Holdings Limited vs Diamond Shields International Ltd
    (2014) eKLR

    Restating the principles for amendment of pleadings from the Central Kenya Ltd case

Jurisdiction invoked
Sections 3A and 100 of the Civil Procedure Act, Cap 21; Order 8 Rules 3 and 5 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Article 159 of the Constitution of Kenya, 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, "Marete v Mwidau & another", Case Analysis (2022). Environment & Land Case 224 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13348/eng@2022-09-27

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