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ELCAllowedEnvironment & Land Case 207 of 2021· [2023] KEELC 17359 (KLR)

Mutiso & another v South Sea Services Limited

Environment and Land Court
3 May 2023
3,684 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed a defendant to amend its defence and counterclaim, confirming that pre-hearing amendments should be freely allowed unless they cause real, uncompensable prejudice.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Mombasa (L.L. Naikuni, J) determined a Notice of Motion dated June 21, 2022 by South Sea Services Limited, the Defendant, seeking leave to amend its Defence and Counterclaim in a land dispute with Beatrice Silu Mutiso and Shoukat Mohamed Noorani, the Plaintiffs. The dispute arose from an Originating Summons dated October 6, 2021 concerning the lifting of a caution registered against suit property, which the court had converted into a Plaint and Defence and Counterclaim. The Defendant contended that amendments made by the Plaintiffs after it filed its Defence necessitated corresponding amendments, which would cause no prejudice. The Plaintiffs opposed through Grounds of Opposition and submissions, arguing the proposed counterclaim was premature because transmission of the property belonging to a deceased's estate had not occurred, relying on authorities on Sections 28, 61 and 62 of the Land Registration Act. The court framed three issues: merit, entitlement to orders, and costs. Applying settled principles from Order 8 of the Civil Procedure Rules and authorities including Eastern Bakery v Castelino and Joseph Ochieng v First National Bank of Chicago, the court held the application met the threshold, finding the transmission objection premature and an issue for the main trial, and that no prejudice was demonstrated. The application was allowed, with the Defendant to file and serve the Amended Defence and Counterclaim within seven days, the Plaintiffs granted reciprocal leave to amend within 14 days, the matter fixed for hearing within 180 days, and each party ordered to bear their own costs.

Key legal issues

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01

Whether leave to amend the Defence and Counterclaim should be granted

Holding

The application met the threshold for amendment; the opposition based on pending transmission of the suit property was premature and raised at the wrong stage.

Reasoning

The court applied settled principles from Order 8 of the Civil Procedure Rules and case law that amendments should be freely allowed at any stage if made in good faith and without prejudice not compensable by costs. The plaintiffs' objection that transmission had not occurred was held to be an issue for the main trial, and no prejudice was demonstrated. The plaintiffs would retain liberty to amend their own pleadings later.

p. 6
02

Whether the plaintiffs would suffer prejudice if the amendment was allowed

Holding

No prejudice was demonstrated; the opposition was premature and overly apprehensive.

Reasoning

The court found that none of the grounds of opposition or submissions demonstrated what prejudice the plaintiffs would suffer. Issues concerning transmission of the deceased's property were relevant to the main trial, not an interlocutory amendment application. The plaintiffs could also regularise matters under the Law of Succession Act and Land Registration Act and later seek their own amendments.

p. 7
03

Costs of the application

Holding

Although the defendant succeeded, each party was to bear their own costs given the matter was still headed to full hearing.

Reasoning

The court exercised its discretion under Section 27(1) of the Civil Procedure Act. Although costs normally follow the event and the defendant succeeded, the court considered it just, fair and reasonable that each party bear their own costs since the suit remained pending for full hearing and determination.

p. 7

Legal principles established

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  • Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs.
  • Costs follow the event under Section 27(1) of the Civil Procedure Act, but the court retains discretion, including ordering each party to bear own costs in interlocutory matters.

Court orders

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  1. 1.The Notice of Motion Application dated June 21, 2022 and the amendment of the Defence and Counterclaim be and is hereby allowed.
  2. 2.The Defendant to file and serve the Amended Defence and Counterclaim in terms of the attached Draft upon payment of requisite court fees within seven (7) days from the date of delivery of the Ruling.
  3. 3.Upon service, corresponding leave granted to the Plaintiffs to file and serve an Amended Plaint and a Reply to the Amended Defence and Counterclaim within 14 days.
  4. 4.The matter to be heard within the next 180 days from the date of the Ruling commencing from October 30, 2023, with a mention on June 8, 2023 for Pre-Trial Conference under Order 11 of the Civil Procedure Rules, 2010.
  5. 5.Each party to bear their own costs.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 27(1)
  • Civil Procedure Rules, 2010Order 8 Rules 1, 2, 3; Order 11; Order 37 Rules 16, 17, 18; Order 51 Rule 1
  • Land Registration Act, No 3 of 2012Sections 28, 49, 50, 51, 55, 56, 57, 58, 61, 62, 80(1)
  • Law of Succession ActCap 160
  • Limitations Actnull

Cases cited (10)

  • Coffee Board of Kenya v Thika Coffee Mills Limited & 2 Others
    (2014) eKLR

    Principles for dealing with applications for amendment of pleadings (Mulla principles).

  • Suleiman v Karasha
    (1989) eKLR

    Parties may amend pleadings with leave at any time before judgment.

  • Satnam Sing Chana & Another v Jutendra Trikamdas Swualy & Another
    (2021) eKLR

    Effect of Sections 28, 61 and 62 of the Land Registration Act on transmission; caveat lodged to fetter plaintiff's rights held unlawful.

  • In Re Estate of Sibianus Ramba Odero (Deceased)
    (2020) eKLR

    Effect of Sections 28, 61 and 62 of the Land Registration Act on transmission of property upon death.

  • Joseph Ondu Nyangiri v Monicah Auma Odeny & Another
    (2021) eKLR

    Cancellation of entries unprocedurally recorded under Section 80(1) of the Land Registration Act.

  • Tildesley v Harper
    (1878) 10 Ch D 296

    Leave to amend should be given unless the applicant acts mala fide or causes uncompensable injury.

  • St Patrick's Hills School Limited v Bank of Africa Kenya Limited
    eKLR (2018)

    General rule that amendments before hearing should be freely allowed absent injustice.

  • Eastern Bakery v Castelino
    (1958) EA 461

    Amendments should be freely allowed if no injustice; injustice cured by costs.

  • Abdul Karim Khan v Mohamed Roshan
    (1965) EA 289 (CA)

    Courts will not permit amendments inconsistent with original pleadings that entirely alter the nature of the defence or plaint.

  • Joseph Ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago
    [1995] eKLR

    Principles under which courts may grant leave to amend pleadings.

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21; Order 8 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Mutiso & another v South Sea Services Limited", Case Analysis (2023). Environment & Land Case 207 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17359/eng@2023-05-03

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