Werunga v Wanyonyi & another
The bottom line
#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
#Executive summary
#Key legal issues
#Whether leave to amend pleadings can be granted after commencement of hearing
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
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.
Whether the proposed amendment prejudiced the Respondents
No - any prejudice is curable by an award of costs and corresponding leave to file a Supplementary/Further Affidavit
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.
Legal principles established
#- 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
#- 1.The Plaintiff/Applicant is granted leave to Amend the Originating Summons
- 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.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.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
- Jurisdiction invoked
- Inherent discretion to allow amendment of pleadings under section 100 of the Civil Procedure Act and the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.