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ELCDismissedEnvironment & Land Case 49 of 2021· [2023] KEELC 18486 (KLR)

Shee v Kamau & 2 others; Kibe & 2 others (Intended Defendant)

Environment and Land Court of Kenya
4 July 2023
4,367 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to let a plaintiff amend his case and add new parties after the trial ended, warning that delay kills late changes.

What this practically means

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Executive summary

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This ruling by A.E. Dena J of the Environment and Land Court at Kwale determines a Notice of Motion dated January 27, 2023 by the plaintiff, Salim Mwalimu Shee, in a land dispute over title to suit property. The suit had been fully heard in February and May 2022 and judgement was pending when the plaintiff, newly acting in person, sought to set aside the hearing proceedings, amend his plaint, enjoin three intended defendants (Joseph Gilbert Kibe, the Land Registrar Kwale and the Attorney General), and have the matter heard de novo. He alleged his previous pleadings were confusing and that the defendants' documents revealed third parties responsible for selling the property and issuing titles. The defendants opposed, arguing the amendments sought to introduce a new cause of action, seal loopholes, and delay judgement. The court identified two issues: whether the new advocates were properly on record, and whether amendment and re-opening were permissible at that late stage. Applying the Ochieng v First National Bank of Chicago principles, the court found considerable delay, lack of good faith, and prejudice to the defendants, holding the amendments were aimed at introducing fresh evidence to rebut the defendants' case rather than determining substantive merits. It distinguished St Patricks Hills School Ltd v Bank of Africa. The court deemed the firm of Benedict Odhiambo Oloo & Company Advocates properly on record using its inherent power, dismissed the application, directed that costs await judgement, and ordered the parties to file final submissions within 14 days, with judgement set for July 4, 2023.

Key legal issues

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01

Whether leave to amend pleadings and re-open a fully heard case should be granted

Holding

Application dismissed; amendment sought after hearing and fixing of judgement, with considerable delay, not in good faith, and prejudicial to defendants

Reasoning

The court applied the Ochieng v First National Bank of Chicago principles: amendments should be timeously applied for, made in good faith, and not cause prejudice not compensable by costs. The plaintiff had known of the intended amendments since a 2017 injunction application, had the opportunity to interrogate the defendants' documents at pre-trial, and sought only to fill gaps and introduce fresh evidence after closing his case. Distinguished St Patricks Hills School where amendment was sought during trial.

02

Whether the intended 4th to 6th defendants should be enjoined

Holding

Joinder refused; the stated reasons were to confirm authenticity of documents and challenge titles, amounting to introducing fresh evidence to rebut the defendants' case

Reasoning

Although Order 1 Rule 10(2) permits adding parties whose presence is necessary to effectually adjudicate the suit, the court found the plaintiff's real purpose was to gather evidence to rebut the defendants and to add a prayer long within his knowledge, which would prejudice or embarrass the opposite party. Non-objection by the intended 5th and 6th defendants was given no weight as it is not a legal parameter.

p. 6
03

Whether the plaintiff's new advocates are properly on record

Holding

Court exercised inherent power to deem the firm of Benedict Odhiambo Oloo & Company Advocates properly on record

Reasoning

The defendants argued the new firm never filed a Notice of Change of Advocates under Order 9 Rule 5. The court noted that when the notice was filed on April 25, 2023 the plaintiff was acting in person, so what was required was a notice of appointment. Prioritising the litigant's right to counsel of choice and access to justice, the court deemed the firm properly on record.

p. 7

Legal principles established

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  • The power to amend pleadings is discretionary and must be exercised judiciously considering inordinate delay, prejudice not compensable by costs, and bona fides
  • That a party does not object to being joined is not a legal parameter for allowing joinder
  • Every litigant has a right to be represented by an advocate of his choice; a defective change of advocates should not hamper access to justice

Court orders

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  1. 1.The Notice of Motion dated January 27, 2023 is dismissed
  2. 2.Costs shall await judgement
  3. 3.Parties to file final submissions starting with the plaintiff within 14 days of the date of the ruling and thereafter the defendants within 14 days of service and/or on expiry of the 14 days
  4. 4.Judgement to be delivered on July 4, 2023

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 1 Rule 3
  • Civil Procedure Rules 2010Order 1 Rule 10(2) and 10(4)
  • Civil Procedure Rules 2010Order 8 Rules 1(1), 3(1), 5(1), 7 & 8
  • Civil Procedure Rules 2010Order 2 Rule 13
  • Civil Procedure Rules 2010Order 9 Rule 5
  • Civil Procedure ActSections 1A, 1B, 3, 3A and 100
  • Constitution of Kenya 2010Article 159(d) and Article 159(2)(b)
  • Limitation Actreferred to in Ochieng principles

Cases cited (11)

  • Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited
    [2013] eKLR

    Principles that amendments should be allowed freely at any stage unless causing prejudice not compensable by costs

  • Monica Moraa v Kenindia Assurance Co Ltd
    [2010] eKLR

    Requirements for an advocate to be properly on record

  • Municipal Council of Thika & Another v Local Government Workers Union (Thika Branch)
    Civil Appeal No NAI 41 of 2001

    Refusal to show indulgence towards negligent conduct of litigants; amendment disallowed at very late stage

  • Andrew Ouko v Kenya Commercial Bank Limited & 3 others
    [2014] eKLR

    Discretion to amend must be exercised judiciously considering delay, prejudice and bona fides

  • Ochieng & Others v First National Bank of Chicago
    Civil Appeal No 147 of 1991

    Wider principles governing allowance of amendments

  • St Patricks Hills School Ltd v Bank of Africa Kenya Ltd
    2018 eKLR

    Distinguished: amendment there sought during trial before plaintiff closed case

  • Harrison C Kariuki v Blue Shield Insurance Co Ltd
    [2006] eKLR

    Late extensive amendments occasion prejudice not made good by costs

  • John Karuga Wahinya v Attorney General & 4 others
    [2020] eKLR

    Support for refusing late amendments

  • Samuel Kiti Lewa v Housing Finance Co Of Kenya Ltd & another
    [2015] eKLR

    Support for refusing late amendments

  • Gideon Sitelu Konchella v Daima Bank Ltd
    [2013] eKLR

    Litigation must be conducted expeditiously; overriding objective

  • Mobil Kitale Service Station v Mobil Oil Kenya Limited & another
    [2004] eKLR

    Expeditious disposal; overriding objective

Jurisdiction invoked
Orders 1 Rules 3, 10(4), Order 8 Rules 3(1), 5(1) and 7 & 8 of the Civil Procedure Rules 2010; Sections 1A, 1B, 3, 3A and 100 of the Civil Procedure Act; Article 159(d) of the Constitution of Kenya 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, "Shee v Kamau & 2 others; Kibe & 2 others (Intended Defendant)", Case Analysis (2023). Environment & Land Case 49 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18486/eng@2023-07-04

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