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ELCAllowedEnvironment and Land Case Civil Suit 200 of 2019· [2023] KEELC 18376 (KLR)

Ternic Enterprises Limited v Waterfront Outlets Limited

Environment and Land Court
5 June 2023
JMJO Mboya
3,876 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a defendant to amend its defence to reveal a prior suit, ruling that critical information outweighs delay when both parties hid it.

What this practically means

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Executive summary

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The defendant/applicant in this land suit moved the court by notice of motion dated April 26, 2023 seeking leave to amend its statement of defence and counterclaim. The proposed amendment sought to bring on record the existence of ELC No 1569 of 2016, a prior suit in which Salford Investment Ltd sued both the present plaintiff and defendant, and in which they filed a joint statement of defence acknowledging the defendant as a bona fide purchaser for value of LR Nos 209/16716 and 209/16717. The plaintiff opposed, contending the prior suit was within the applicant's knowledge when it filed its defence and that the application was mounted with inordinate and unexplained delay since the defence was filed in 2016/2017. The court framed three issues: the relevance of the prior suit, whether the amendment would aid comprehension of the dispute, and whether delay should vitiate the discretion. Applying the Court of Appeal's jurisprudence in Central Bank of Kenya v Trust Bank Ltd and Elijah Kipng'eno Arap Bii v Kenya Commercial Bank Ltd, the court held the prior pleadings were critical, noting the plaintiff's current allegation of want of consideration directly contradicted its joint defence in the prior suit. On delay, the court found both parties culpable of withholding the prior suit from the court in equal measure, and held the delay neither inordinate nor grossly unreasonable. The application was allowed: leave to amend within 7 days, plaintiff to reply within 14 days, liberty to file further documents and witness statements, with costs of the application abiding the outcome of the suit.

Key legal issues

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01

Relevance of prior suit ELC No 1569 of 2016 to the instant dispute

Holding

The pleadings in the prior suit, including the joint statement of defence acknowledging the defendant as a bona fide purchaser, are critical to a just determination.

Reasoning

Both parties were jointly sued by Salford Investment Ltd and filed a joint defence affirming the defendant's bona fide purchaser status. The plaintiff now contradicts that position by alleging want of consideration. The court must interrogate the bona fides of the plaintiff's claims, so the prior pleadings materially assist the court.

p. 5
02

Whether the amendment enables the court to comprehend the issues in dispute

Holding

Yes; the amendment would enable the court to fully appreciate the true state of facts and the parties' dealings over the suit property.

Reasoning

One of the properties disputed in the prior suit is the same property in issue here, and the plaintiff's current position contradicts its joint defence. The amendment brings on board material that assists the court to discharge its statutory and constitutional mandate of resolving disputes once and for all.

p. 6
03

Whether inordinate delay should vitiate the discretion to allow amendment

Holding

The delay is neither inordinate nor grossly unreasonable and is attributable to both parties; it should not deprive the applicant of the right to bring forth the intended information.

Reasoning

Although the application ought to have been made earlier, both parties withheld knowledge of the prior suit from the court in equal measure. The plaintiff itself concealed the prior acknowledgement of the defendant's bona fide purchaser status. Shutting out critical information would be remiss and would not serve the interests of justice.

p. 7

Legal principles established

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  • Amendments should be allowed where they enable the court to determine the real question in controversy, provided there is no undue delay, no new or inconsistent cause of action, no vested interest affected and no injustice to the other side.
  • Where an amendment brings forth material to help the court discern the nuances of the dispute, the court should accede to it notwithstanding delay attributable to both parties.

Court orders

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  1. 1.Defendant granted leave to file and serve the amended Statement of Defense and Counterclaim within 7 days
  2. 2.Plaintiff granted leave to file and serve a Reply to Defense and defense to the counterclaim, if any, within 14 days
  3. 3.Parties granted liberty to file and serve Further Bundles and bundles of documents, Further List of witnesses and additional witness statements, if any, within 14 days from close of pleadings
  4. 4.Parties to avail hard copies of pleadings to court once filed in the usual manner
  5. 5.Costs of the application to abide the outcome of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Civil Procedure Actsection 100
  • Civil Procedure Rules (repealed)Order VIA rule 3

Cases cited (5)

  • Kampala Coach Ltd versus Community Bank Ltd
    (2016) eKLR
  • Coffee Board of Kenya Ltd versus Thika Coffee Mills Ltd
    (2014) eKLR
  • Central Bank of Kenya versus Trust Bank Ltd
    (1996) eKLR

    Settled rule on amendment of pleadings: real question in controversy, no undue delay, no injustice.

  • Elijah Kipng'eno Arap Bii versus Kenya Commercial Bank Ltd
    (2013) eKLR

    Summary of the law on amendment of pleadings under section 100 Civil Procedure Act.

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

    Ratio on powers to allow amendment: true merits, timeous application, good faith, costs can compensate.

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; discretion to grant leave to amend pleadings under the Civil Procedure Act and Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (16)

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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, "Ternic Enterprises Limited v Waterfront Outlets Limited", Case Analysis (2023). Environment and Land Case Civil Suit 200 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18376/eng@2023-06-05

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