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ELCDismissedOriginating Summons No 28 of 2019· [2022] KEELC 13466 (KLR)

Sabera Karanyama M'Mwithiga & 4 others v Geoffrey Mutuma M'Rugongo

Environment and Land Court at Meru
12 October 2022
CNC K Nzili
1,052 words in judgment
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The bottom line

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A Meru court refused a landowner's late attempt to add an eviction counterclaim, ruling three years of unexplained delay and contradictory positions could not be excused.

What this practically means

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Executive summary

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This is a ruling by C K Nzili, J of the Environment and Land Court at Meru on the defendant's application dated 24 June 2022 seeking leave to amend his defence and include a counterclaim for eviction and mesne profits against the five plaintiffs, who had sued by originating summons under sections 37 and 38 of the Limitation of Actions Act claiming adverse possession over L.R No. Abuthoguchi/Ruiga/456. The plaintiffs opposed, arguing the application came three years after filing, breached pretrial directions, was an afterthought brought in bad faith and an abuse of process. The court restated the Order 8 Rules 3 & 5 discretion and the amendment principles in Central Bank of Kenya v Trust Bank and Joseph Ochieng v First National Bank of Chicago. It found the three-year delay unexplained, noted the defendant had failed to file compliance documents despite orders, and observed that his draft counterclaim now described him as legal representative of the estate of Perista Kigetu, directly contradicting his replying affidavit in which he denied any grant. Applying Catherine Koriko and Njoki Wainaina, the court held the proposed amendment introduced a new and inconsistent case, changing the character of the defence and circumventing the plaintiffs' rights. The application was dismissed with costs.

Key legal issues

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01

Whether leave to amend the defence and add a counterclaim should be granted despite three years' delay

Holding

The application was refused because the delay was unexplained and the proposed counterclaim was inconsistent with the defendant's earlier position.

Reasoning

The court applied the Central Bank of Kenya v Trust Bank and Joseph Ochieng principles: amendments must be timeously applied for, must not introduce inconsistent causes of action, and must not cause injustice. The defendant had already raised eviction in his replying affidavit but took no steps for three years, breached pretrial directions, and now sought to recast himself as a legal representative of an estate, contradicting his earlier denial. The court held it should not condone dilatoriness.

p. 3
02

Whether the proposed counterclaim was inconsistent with the defendant's earlier pleadings

Holding

Yes - the counterclaim was inconsistent with the replying affidavit and with the adverse possession substratum of the suit.

Reasoning

The suit's substratum was adverse possession. In his replying affidavit the defendant denied being the legal representative of the estate of Perista Kigetu and stated he had taken out no grant, yet the draft counterclaim described him as such. Relying on Catherine Koriko and Njoki Wainaina, the court found the amendment introduced a new, inconsistent case changing the character of the defence and circumventing the plaintiffs' rights.

p. 2

Legal principles established

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  • A party may apply to amend pleadings at any stage of proceedings, but the court's discretion is governed by the principles that amendments must be necessary to determine the real question in controversy, made without inordinate delay, not introduce a new or inconsistent cause of action, and not cause injustice to the other side.
  • A proposed amendment that is inconsistent with a party's earlier pleaded position and introduces a new case will be refused; dilatoriness will not be condoned.

Court orders

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  1. 1.The application dated 24.6.2022 seeking leave to amend the defence and include a counterclaim is dismissed
  2. 2.Costs of the application awarded to the plaintiffs

Authorities

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Legislation

  • Limitation of Actions ActSections 37 and 38
  • Civil Procedure RulesOrder 8 Rules 3 & 5

Cases cited (7)

  • Central Bank of Kenya vs Trust Bank Ltd & others
    (2000) eKLR

    Principles for allowing amendments: real question in controversy, no multiplicity of suits, no inordinate delay, no new or inconsistent cause of action, no injustice.

  • Joseph Ochieng & 2 others vs First National Bank of Chicago
    Civil Appeal No. 149 of 1991

    Amendments should be timeously applied for; power exercisable at any stage; late but good-faith amendments allowed if costs compensate; limitation considerations.

  • Catherine Koriko & 3 others vs Evaline Rosa
    (2020) eKLR

    Adverse possession claim inconsistent with beneficiary claim under a deceased's estate; amendment an indirect attempt to re-open litigation.

  • Njoki Wainaina vs Josephat Thuo Githachuri & 3 others; National Land Commission & another (interested parties)
    (2021) eKLR

    Amendment introducing a counterclaim not made in the alternative, changing the nature of the case, is contrary to principles governing amendments.

  • Eastern Bakery vs Castelino
    (1958) E.A 361

    Dilatoriness should not be condoned in amendment applications.

  • Adbul Karim Khan vs Mohamed Roshan
    (1965) E.A 289

    Against condoning dilatoriness in amendments.

  • Aaron Tafari Ouko & another vs Solomon Boit
    (2021) eKLR

    Against condoning dilatoriness in amendments.

Jurisdiction invoked
Environment and Land Court jurisdiction over the suit; application brought under Order 8 Rules 3 & 5 of the Civil Procedure Rules

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, "Sabera Karanyama M'Mwithiga & 4 others v Geoffrey Mutuma M'Rugongo", Case Analysis (2022). Originating Summons No 28 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13466/eng@2022-10-12

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