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ELCPartially AllowedEnvironment & Land Case 908 of 2012· [2022] KEELC 13844 (KLR)

Murphy Chemicals E.A Ltd v Hashba Company Limited & 7 others

Environment and Land Court
22 September 2022
4,139 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a landowner to update its 2012 lawsuit to reflect post-2010 constitutional changes, ruling that delay alone shouldn't kill a genuine case.

What this practically means

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Executive summary

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In this ruling the Environment and Land Court at Nairobi (JO Mboya, J) determined a notice of motion dated June 27, 2022 by Murphy Chemicals E.A Ltd seeking leave to amend its plaint filed in 2012, to file further witness and document lists, and to recall its witness, Mr Kimani Mathu, solely to produce a supplementary list of documents. The application followed the promulgation of the Constitution of Kenya 2010, which abolished offices originally sued (the Commissioner of Lands and Principal Registrar of Titles), necessitating their replacement with successor bodies and the deletion of two prayers for registration as owner that had become superfluous. Only the 4th and 5th defendants opposed, contending the amendments introduced new causes of action, would plug gaps exposed in cross-examination, and were brought with inordinate and unexplained delay after a decade. The court framed three issues: new cause of action, prejudice, and delay. It held the amendments neither altered the character of the cause of action nor introduced new ones, since they merely substituted successor offices and removed obsolete prayers; any prejudice was compensable by costs, with recorded evidence remaining intact and no trial de novo; and the delay, though conceded, measured forty-five days from commencement of hearing and should not drive the litigant from the seat of justice. The application was allowed with timelines for all parties, recall of the plaintiff for production of documents and further cross-examination, and costs of Kshs 15,000/= awarded to the 4th and 5th defendants only.

Key legal issues

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01

Whether the proposed amendments introduce a new cause of action

Holding

No - the amendments merely replace abolished government offices with successor offices and delete two superfluous prayers

Reasoning

The court examined the draft amended plaint and found only two changes: replacement of the 6th and 7th defendants with successor offices, and deletion of two prayers for registration as owner since the applicant is already registered. Nothing new was added, so the character of the cause of action was unaltered.

p. 6
02

Whether defendants would suffer prejudice not compensable by costs

Holding

No prejudice or any prejudice is compensable by costs; recorded evidence remains on record and the plaintiff will not restart the trial de novo

Reasoning

Counsel alleging grave injustice did not identify any specific prejudice. Existing evidence remains on record and the recall of PW1 is limited to producing supplementary documents, so fears of plugging cross-examination gaps are unfounded and any prejudice is atoned by costs.

03

Whether the application was brought with inordinate delay disentitling the applicant

Holding

Delay acknowledged but not inordinate when measured from commencement of hearing (45 days); it should not drive the litigant from the seat of justice

Reasoning

Though the suit dates to 2012, hearing only began on May 5, 2022 and the application was mounted within 45 days thereof. Counsel conceded the lapse; courts are temples of justice, not instruments of punishment for pardonable mistakes, consistent with Article 10(2)(b) values.

Legal principles established

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  • Amendments introducing a new cause of action contrary to existing pleadings ought to be declined
  • Amendments sought before hearing should be freely allowed where the other side can be compensated by costs
  • Delay in seeking amendment, though not condonable, should not by itself disentitle a deserving litigant

Court orders

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  1. 1.Leave granted to the plaintiff/applicant to file and serve an amended plaint in line with the draft attached to the supporting affidavit, within fourteen (14) days
  2. 2.Liberty to file a compliant verifying affidavit to the amended plaint
  3. 3.Defendants/respondents granted liberty to file and serve amended statements of defence within fourteen (14) days of service
  4. 4.Plaintiff granted leave to file a reply to any amended statement of defence within seven (7) days of service
  5. 5.Liberty to parties to file further/supplementary lists of witnesses, witness statements and additional documents within fourteen (14) days from close of pleadings
  6. 6.Default in filing the documents shall amount to forfeiture of the party's rights
  7. 7.Plaintiff to be recalled to produce the supplementary list of documents and be further cross-examined
  8. 8.New parties at liberty to enter appearance and file statements of defence within fourteen (14) days per order 7 rule 5 of the Civil Procedure Rules, 2010
  9. 9.Matter to be mentioned to ascertain compliance and thereafter a hearing date fixed
  10. 10.Timelines to be strictly adhered to
  11. 11.Costs of the application assessed at Kshs 15,000/= payable to the 4th and 5th defendants/respondents within fourteen (14) days, executable in default irrespective of order 51 rule 11(2)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application under order 8 (amendment of pleadings) 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, "Murphy Chemicals E.A Ltd v Hashba Company Limited & 7 others", Case Analysis (2022). Environment & Land Case 908 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13844/eng@2022-09-22

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