Shee v Kamau & 2 others; Kibe & 2 others (Intended Defendant)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether leave to amend pleadings and re-open a fully heard case should be granted
Application dismissed; amendment sought after hearing and fixing of judgement, with considerable delay, not in good faith, and prejudicial to defendants
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.
Whether the intended 4th to 6th defendants should be enjoined
Joinder refused; the stated reasons were to confirm authenticity of documents and challenge titles, amounting to introducing fresh evidence to rebut the defendants' case
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.
Whether the plaintiff's new advocates are properly on record
Court exercised inherent power to deem the firm of Benedict Odhiambo Oloo & Company Advocates properly on record
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated January 27, 2023 is dismissed
- 2.Costs shall await judgement
- 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.Judgement to be delivered on July 4, 2023
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.