Gatimu v Registered Trustees of the Catholic Diocese of Nakuru & 22 others (Environment and Land Case Civil Suit 158 of 2013) [2023] KEELC 756 (KLR)
The bottom line
#Kenya's Environment and Land Court in Nakuru allowed land defendants to amend their defence years later, ruling late amendments are permitted if made in good faith.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to further amend a defence and counterclaim should be granted late in the day to include a prayer for cancellation of a Certificate of Lease
Leave granted; the amendment is merited and necessary as the suit has not proceeded to hearing and no prejudice will be occasioned
The court restated the principles in Elijah Kipngeno Arap Bii, Grantham and Eastern Bakery that amendments may be allowed at any stage if made timeously, in good faith, materially and without injustice compensable by costs. The Applicants annexed a draft Further Amended Defence and Counterclaim incorporating the cancellation prayer. Since the matter had not proceeded to hearing and the other parties retain a corresponding right to amend, no prejudice arises.
Costs of the amendment application
Costs follow the event under Section 27 of the Civil Procedure Act, but here the court directed that costs of the application abide the outcome of the suit
The court cited the general rule that a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise. Exercising that discretion, it directed that costs await the final outcome of the suit.
Legal principles established
#- The court may allow amendment of pleadings at any stage of the proceedings provided it is made in good faith, is material and not merely technical, and no injustice is caused that cannot be compensated by costs
Court orders
#- 1.Leave granted to the Defendants/Applicants to further amend their Amended Written Statement of Defence and Counterclaim dated 7th July, 2008 in terms of the annexed draft Further Amended Statement of Defence and Counterclaim
- 2.The draft Further Amended Written Statement of Defence and Counterclaim to be filed and served within 7 days from the date of the ruling
- 3.The other parties granted corresponding leave to amend their pleadings within 14 days, if need be
- 4.Costs of the application to abide the outcome of the suit
- Jurisdiction invoked
- Sections 3A and 100 of the Civil Procedure Act, Order 7 Rule 3, Order 8 Rule 3 & 5 and Order 51 Rule 1 of the Civil Procedure Rules 2010, and Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gatimu v Registered Trustees of the Catholic Diocese of Nakuru & 22 others (Environment and Land Case Civil Suit 158 of 2013) [2023] KEELC 756 (KLR)", Case Analysis (2023). Not stated in the extract (Nakuru Environment and Land Court, Notice of Motion dated 2nd September, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/756/eng@2023-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.