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ELCAllowedEnvironment & Land Case E002 of 2022· [2023] KEELC 16193 (KLR)

Werunga v Wanyonyi & another

Environment and Land Court
7 March 2023
1,294 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

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A Kenyan land court allowed a plaintiff to increase his land claim mid-hearing, confirming you can amend pleadings at any stage if the other side is compensated by costs.

What this practically means

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Executive summary

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The Applicant, Charles Wambulwa Werunga, moved the Environment and Land Court at Bungoma by Notice of Motion dated November 22, 2022 seeking leave to amend his Originating Summons in a land claim over parcel No. E Bukusu/S Nalondo/1280. The original summons, filed March 26, 2022, sought registration as owner of 4.2 acres; the proposed amendment increased the claim to 5.16 acres from the same parcel. The Applicant justified the amendment on subsequent events: a survey establishing the exact acreage in his possession, and the discovery during the part-heard hearing that the Respondents had transferred the entire land into their names. The Respondents, through a Replying Affidavit sworn by Eliud Wafula Aineah, opposed the application, arguing no cogent reasons were given, that the suit was part heard with the plaintiff as the only witness, that the application amounted to an impermissible attempt to amend evidence, and that allowing it would offend natural justice by enabling repeated amendments after cross-examination. The court, EC Cherono J, applied the established principles on amendment of pleadings from Elijah Kipngeno Arap Bii v Kenya Commercial Bank and Harrison C Kariuki v Blueshield Insurance, holding that amendments may be sought at any stage and should be liberally allowed if made in good faith and the other party can be compensated by costs. Finding the amendment did not introduce a new cause of action or change the character of the action, the court allowed the application, granted leave to amend, permitted the Respondents corresponding leave to file a Supplementary/Further Affidavit, and awarded thrown away costs of Kshs 10,000 to the Respondents.

Key legal issues

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01

Whether leave to amend pleadings can be granted after commencement of hearing

Holding

Yes - the power to amend can be exercised at any stage, including after hearing has commenced, provided the amendment is in good faith and costs can compensate the other side

Reasoning

The court applied the principles in Elijah Kipngeno Arap Bii v Kenya Commercial Bank and Harrison C Kariuki v Blueshield Insurance, which permit amendment at any stage of the proceedings. Although the suit was part heard and the plaintiff had already testified, the amendment merely changed the acreage claimed from 4.2 to 5.16 acres over the same parcel. It did not introduce a new cause of action or substantially change the action, and the Respondents could be compensated by thrown away costs.

p. 3
02

Whether the proposed amendment prejudiced the Respondents

Holding

No - any prejudice is curable by an award of costs and corresponding leave to file a Supplementary/Further Affidavit

Reasoning

The Respondents argued the amendment was an attempt to amend evidence and would offend natural justice by allowing repeated amendments after cross-examination. The court found the amendment was made in good faith, would not deprive the Respondents of any substantive right, and any expense, delay or bother could be compensated by costs, consistent with the guiding principle that amendments be liberally permitted unless prejudice and injustice would be occasioned.

p. 3

Legal principles established

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  • Amendments to pleadings should be liberally allowed if made in good faith and the other party can be compensated by costs, provided the amendment does not introduce a new cause of action or change the character of the action

Court orders

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  1. 1.The Plaintiff/Applicant is granted leave to Amend the Originating Summons
  2. 2.The draft amended Originating Summons annexed to the supporting Affidavit to be filed and served within 7 days from the date of the Ruling
  3. 3.The Defendants/Respondents are granted corresponding leave to file and serve a Supplementary/Further Affidavit within 14 days from the date of service of the amended Originating Summons
  4. 4.The Plaintiff/Applicant to pay the Defendants/Respondents thrown away costs of the application assessed at Kshs 10,000 within 14 days from the date of the Ruling

Authorities

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Legislation

  • Civil Procedure Actsection 100
  • Civil Procedure Rules (repealed)Order VIA rule 3
  • Limitation Acts

Cases cited (4)

  • Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited
    (2013) eKLR

    Summary of principles on amendment of pleadings under section 100 Civil Procedure Act and Order VIA rule 3

  • Joseph Ochieng & 2 Others v First National Bank of Chicago
    Civil Appeal No.149 of 1991

    Ratio on powers of court to allow amendment of pleadings

  • Harrison C Kariuki v Blueshield Insurance Company Ltd
    (2006) eKLR

    Guiding principle that amendments be liberally permitted unless prejudice occasioned

  • Central Kenya Ltd v Trust Bank Ltd
    (2000) EALR 365

    Amendments liberally allowed unless prejudice; costs can compensate

Jurisdiction invoked
Inherent discretion to allow amendment of pleadings under section 100 of the Civil Procedure Act and the Civil Procedure Rules

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, "Werunga v Wanyonyi & another", Case Analysis (2023). Environment & Land Case E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16193/eng@2023-03-07

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