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ELCAllowedNot stated in judgment· [2023] KEELC 790 (KLR)

Egoli Estates Limited v Bluebill Enterprises Limited (Environment & Land Case E395 of 2021) [2023] KEELC 790 (KLR)

Environment and Land Court
7 February 2023
MOMogeni
1,178 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a landowner to further amend its defence and counter-claim, confirming earlier rejected filings don't block fresh amendment applications.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Nairobi (Mogeni J) on the defendant's notice of application dated August 29, 2022 seeking leave to amend its amended defence and counter-claim dated January 21, 2022, under Order 8 rules 3 and 5 of the Civil Procedure Rules and sections 1A, 1B, 3A and 100 of the Civil Procedure Act. The suit concerns alleged encroachment: the plaintiff, owner of Dagoretti/Riruta/3095, claims the defendant's boundary wall and apartment column bases on adjacent parcel Dagoretti/Riruta/3096 encroached by 0.3 metres and 0.5 metres respectively, discovered on a survey in August 2019, and claims expenses of abatement. The plaintiff opposed the amendment application on the ground of res judicata, arguing that the court's ruling of June 27, 2022 had conclusively dealt with an amended defence and counter-claim filed without leave. The court framed a single issue: whether the application was res judicata. Relying on Eastern Bakery v Castelino, Caneland Ltd v Delphis Bank Ltd and Tee Gee Electrical & Plastic Co, the court held that res judicata applies only to matters heard and determined on the merits; the earlier ruling had merely rejected a filing made without leave and was not a merits determination. The court also noted the hearing had not commenced, that prejudice could be cured by allowing the plaintiff corresponding leave and costs, and that courts eschew procedural technicalities. The application was allowed with costs in the cause.

Key legal issues

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01

Whether the application for leave to amend was barred by res judicata

Holding

It was not res judicata because the earlier ruling rejected the filing of the amended defence and counter-claim filed without leave; it was not a decision on the merits

Reasoning

The court distinguished the June 27, 2022 ruling: it merely rejected a filing made without leave and did not hear and determine the issue on its merits. Res judicata requires the issue to have been heard and determined on the merits. Procedural technicality considerations under Article 159(2)(d) and section 19(1) of the ELC Act reinforced allowing the amendment, with any prejudice curable by corresponding leave to the plaintiff and costs.

p. 3

Legal principles established

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  • Amendments to pleadings should be freely allowed if they can be made without injustice to the other side, injustice being absent where the other side can be compensated by costs
  • Res judicata applies only where the prior matter was heard and determined on the merits

Court orders

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  1. 1.Leave granted to the defendant/applicant to amend its amended defence and counter-claim dated January 21, 2022 as shown in the draft further amended defence and counter-claim
  2. 2.The annexed further amended defence and counter-claim be deemed as duly filed upon payment of court fees
  3. 3.Costs of the application ordered in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 rules 3 and 5
  • Civil Procedure RulesOrder 11
  • Civil Procedure ActSections 1A, 1B, 3A and 100
  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Environment and Land Court ActSection 19(1)

Cases cited (4)

  • Eastern Bakery v Castelino
    [1959] EA 461
  • Caneland Ltd & Others v Delphis Bank Ltd
    CA No 20 of 2000
  • The Tee Gee Electrical & Plastic Co v Kenya Industrial Estates Ltd
    CA No 333 of 2001
  • Wensley Barasa v Immaculate Awino Abongo & another
    [2020] eKLR
Jurisdiction invoked
Order 8 rules 3 and 5 of the Civil Procedure Rules; sections 1A, 1B, 3A and 100 of the Civil Procedure Act

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, "Egoli Estates Limited v Bluebill Enterprises Limited (Environment & Land Case E395 of 2021) [2023] KEELC 790 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/790/eng@2023-02-07

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