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ELCPartially AllowedEnvironment & Land Case 213 of 2019· [2023] KEELC 18305 (KLR)

Sketty v Bwana & 10 others

Environment and Land Court
21 June 2023
NMN. A. Matheka
1,108 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a landowner to update his lawsuit after defendants altered the disputed property, confirming amendments are freely permitted when no one is unfairly prejudiced.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Mombasa (N.A. Matheka, J) on the plaintiff's application dated August 22, 2022, brought under Order 8 Rule 3 of the Civil Procedure Rules, 2010, seeking leave to amend the plaint in a land dispute against eleven defendants. The plaintiff, who sued by plaint dated November 19, 2018, explained that during the proceedings the defendants contemptuously interfered with and altered the subject matter of the suit, prompting a contempt application and changing the factual matrix; the proposed amendment removed the prayer for damages and included a mandatory order of injunction. The court restated the guiding principle from Central Kenya Ltd v Trust Bank and the principles cited in AAT Holdings Ltd v Diamond Shields International Ltd: amendments should be freely allowed at any stage provided they introduce no prejudice or injustice not compensable in costs, no new or inconsistent cause of action, and affect no vested rights. It also cited triable-issue authorities (Isaac Awuondo v Surgipharm; Moi University v Vishva Builders; HD Hasmani; Patel v EA Cargo Handling Services). Finding no prejudice to the parties and that it was in the interest of justice for all matters to be placed before the court, the judge allowed the amendment and ordered costs of the application to be in the cause.

Key legal issues

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01

Whether leave to amend the plaint should be granted

Holding

Leave granted; the amendment is necessary to capture the altered factual matrix and occasions no prejudice to the defendants

Reasoning

The court applied the settled principles in Central Kenya Ltd v Trust Bank and AAT Holdings: amendments should be freely allowed at any stage unless they introduce prejudice not compensable in costs, a new or inconsistent cause of action, or affect vested rights. On perusal of the draft amended plaint, the judge found no prejudice would be suffered and that it was in the interest of justice that all matters be placed before the court for a just determination.

p. 3

Legal principles established

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  • Amendments of pleadings should be freely allowed at any stage provided they cause no prejudice or injustice that cannot be compensated in costs

Court orders

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  1. 1.The plaintiff granted leave to amend the plaint as set out in the draft amended plaint annexed to the application
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 8 Rule 3

Cases cited (6)

  • Central Kenya Ltd vs Trust Bank & 4 Others
    CA No 222 of 1998

    Guiding principle that amendments should be freely allowed unless they cause prejudice or injustice not compensable in costs

  • AAT Holdings Limited vs Diamond Shields International Ltd
    (2014) eKLR

    Principles for amendment of pleadings as set out in the Central Kenya Ltd case

  • Isaac Awuondo v Surgipharm Ltd & Another
    [2011] eKLR

    Quoting Moi University v Vishva Builders on triable issues

  • Moi University v Vishva Builders Limited
    Civil Appeal No 296 of 2004 (unreported)

    One bona fide triable issue entitles a defendant to leave to defend

  • HD Hasmani v Banque Du Congo Belge
    [1938] 5 EACA 89

    Even one triable issue is sufficient

  • Patel vs EA Cargo Handling Services Ltd
    [1974] EA 75

    Definition of a triable issue as one raising a prima facie defence to go to trial

Jurisdiction invoked
Order 8 Rule 3 of the Civil Procedure Rules, 2010 (inherent case-management jurisdiction of the Environment and Land Court over amendment of pleadings)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sketty v Bwana & 10 others", Case Analysis (2023). Environment & Land Case 213 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18305/eng@2023-06-21

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