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ELCPartially AllowedNot stated in the extract (Nakuru Environment and Land Court, Notice of Motion dated 2nd September, 2022)· [2023] KEELC 756 (KLR)

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)

Environment and Land Court
13 February 2023
3,293 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (L. A. Omollo, J) determined a Notice of Motion dated 2nd September, 2022 by the Defendants/Applicants seeking leave under Order 8 Rule 3 of the Civil Procedure Rules to further amend their Amended Written Statement of Defence and Counterclaim dated 7th July, 2008. The amendment sought to add a prayer for cancellation of a Certificate of Lease dated 16th May, 2016 issued over the suit property, Molo Township Block 2/85, in the name of John Chepkien Kigen during the pendency of the suit and, according to the Applicants, in defiance of status quo orders issued by Justice D. Maraga in July 2008. The Plaintiff/Respondent and the 2nd Defendant/Respondent opposed the application through Grounds of Opposition, contending that the Certificate of Lease was served on the Applicants as early as June 2016, that the application was belated, brought in bad faith, an abuse of process and an attempt to litigate in installments and delay the hearing. The court framed two issues: whether leave to amend should be granted, and costs. Applying Order 8 Rule 3(1) and the principles in Elijah Kipngeno Arap Bii, Grantham v NSSF and Eastern Bakery v Castelino, the court held that amendments may be allowed at any stage, that the suit had not proceeded to hearing, and that no prejudice incapable of being compensated would be occasioned. The application was allowed: leave to amend was granted, the amended pleading to be filed and served within 7 days, other parties granted corresponding leave within 14 days, and costs of the application were ordered to abide the outcome of the suit.

Key legal issues

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01

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

Holding

Leave granted; the amendment is merited and necessary as the suit has not proceeded to hearing and no prejudice will be occasioned

Reasoning

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.

p. 7
02

Costs of the amendment application

Holding

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

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 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. 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. 3.The other parties granted corresponding leave to amend their pleadings within 14 days, if need be
  4. 4.Costs of the application to abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure ActSections 3A and 100; Section 27
  • Civil Procedure Rules 2010Order 7 Rule 3; Order 8 Rules 3 & 5; Order 51 Rule 1
  • Constitution of KenyaArticle 159; Article 159(2)(b)
  • Judicature ActSection 3(2)

Cases cited (9)

  • Institute for Social Accountability & Another Vs Parliament of Kenya & 3 Others
    [2014] eKLR
  • Harrison C. Kariuki Vs Blueshield Insurance Company Limited
    [2006] eKLR
  • Ochieng & Others Vs First National Bank of Chicago
    Civil Appeal No. 147 of 1991
  • Rubina Ahmed & 3 Others Vs Guardian Bank Ltd (Sued in its capacity as a successor in Title to First National Finance Bank Ltd)
    [2019] eKLR
  • John Nyagaka Osoro Vs Reynold Karisa Charo & 5 Others
    [2021] eKLR
  • Kassam Vs Bank of Baroda (Kenya) Ltd
    [2002] eKLR
  • Elijah Kipngeno Arap Bii Vs Kenya Commercial Bank Limited
    [2013] eKLR
  • David Jonathan Grantham & Another vs National Social Security Fund
    [2007] eKLR
  • Eastern Bakery Vs Castelino
    [1958] E.A 461
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

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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, "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.