Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in extract (ELC, Mombasa)· [2023] KEELC 252 (KLR)

Khamis & others v Ainushamsi Multiple Agencies Ltd (Environment & Land Case 241 of 2020) [2023] KEELC 252 (KLR)

Environment and Land Court
24 January 2023
1,169 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court in Mombasa allowed defendants to amend their defence and add a counterclaim in a land dispute, despite a res judicata objection.

What this practically means

#

Executive summary

#
The Defendants/Applicants applied by notice of motion dated September 22, 2022, under Section 3A of the Civil Procedure Act and Order 8 Rule 2 of the Civil Procedure Rules, for leave to amend their defence and to have a draft amended defence (including a counterclaim) deemed filed upon payment of court fees. They argued that the claim was based on two conflicting parcels of land - LR 28815/CR 60948 and Kilifi/Kawala 'A' Kadzonzo/32 - and that amendment was necessary before the hearing fixed for November 8, 2022. The Respondents opposed, contending that ELC No 263 of 2015 (Mombasa), concerning CR 60948 and dismissed on March 28, 2019, had already determined the validity of the title; that the Defendants were parties to or aware of that suit; and that the intended counterclaim sought to introduce a non-existent title, was an abuse of process and was barred by Section 7 of the Civil Procedure Act as res judicata. The court, per N A Matheka J, applied the principles in Central Kenya Ltd v Trust Bank and AAT Holdings, and the triable-issue test in Moi University v Visha Builders and Patel v EA Cargo Handling Services. Holding that the discretion to allow amendments is wide and unfettered when exercised judicially, and that no prejudice would be suffered, the court allowed the application in the interest of justice, with costs in the cause.

Key legal issues

#
01

Whether leave to amend the defence and introduce a counterclaim should be granted

Holding

Yes - the amendment was freely allowed as no prejudice would be suffered and it was in the interest of justice for all matters in controversy to be determined together

Reasoning

The court applied the settled principle that amendments should be freely allowed at any stage unless they occasion irreparable prejudice. It noted the claim was based on two conflicting parcels of land, that the amended defence challenged the plaintiffs' title via a counterclaim, and that bringing all matters before the court would enable a just determination. No prejudice compensable only in costs was identified.

p. 3
02

Whether the intended counterclaim is res judicata given the dismissal of ELC No 263 of 2015

Holding

Not upheld - the amendment was allowed notwithstanding the objection, the court being satisfied the interests of justice required the matters to be litigated together

Reasoning

The respondents argued the counterclaim sought to revive a title found not to exist and was barred by Section 7 of the Civil Procedure Act as res judicata, the Defendants having been parties to or aware of the prior ELC No 263 of 2015 which was dismissed. The court did not expressly rule on res judicata but allowed the amendment, holding all matters ought to be brought before the court for a just and fair decision.

p. 3

Legal principles established

#
  • Amendments to pleadings should be freely allowed at any stage provided no prejudice or injustice not compensable in costs is caused to the other party
  • A defence raising even one bona fide triable issue must be allowed to go to trial

Court orders

#
  1. 1.Leave granted to the Defendants to amend their defence; the draft amended defence (including counterclaim) to be deemed duly filed
  2. 2.Costs of the application to be in the cause

Authorities

#

Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure Act (Cap 21)Section 7
  • Civil Procedure RulesOrder 8 Rule 2

Cases cited (5)

  • Central Kenya Ltd v Trust Bank & 4 Others
    CA No 222 of 1998
  • AAT Holdings Limited v Diamond Shields International Ltd
    (2014) eKLR
  • Moi University v Visha Builders Limited
    Civil Appeal No 296 of 2004 (unreported)
  • HD Hasmani v Banque Du Congo Belge
    (1938) 5 EACA 89
  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 8 Rule 2 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Khamis & others v Ainushamsi Multiple Agencies Ltd (Environment & Land Case 241 of 2020) [2023] KEELC 252 (KLR)", Case Analysis (2023). Not stated in extract (ELC, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/252/eng@2023-01-24

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