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ELCDismissedEnvironment & Land Case 159 of 2017· [2023] KEELC 19346 (KLR)

Kiarie v Bei International Limited t/a Scorpio Villas & 3 others

Environment and Land Court
25 August 2023
2,648 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Malindi (M.A. Odeny, J) determined a Notice of Motion dated 2nd December 2022 by the 1st Defendant, Bei International Limited t/a Scorpio Villas, seeking leave to amend its statement of defence to add a counterclaim asserting a right to use a beach access footpath by prescription and a limitation defence, together with leave to file supplementary lists of witnesses and documents, including evidence from Simone Mancini, the former owner of the suit properties. The plaintiff, Amon Muturi Kiarie, whose claim concerns trespass on a portion of Malindi Plot No. 10496 forming an access road to the beach, opposed the application as mala fides, an abuse of process, and prejudicial, coming after he had closed his case on 16th March 2022 in a suit filed in July 2017. The court applied Order 8 of the Civil Procedure Rules, Halsbury's Laws, and the Kassam v Bank of Baroda principles, holding that amendments should ordinarily be allowed unless prejudicial, late without explanation, or changing the character of the suit. It found the proposed amendments were largely immaterial further denials, that the prescription and limitation claims were new and late, and that the 1st Defendant, having occupied Cocoa Beach since 1985, could not claim ignorance of the access road. The amendments were held to be brought in bad faith and an afterthought. The application was dismissed with costs to the plaintiff.

Key legal issues

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01

Whether leave to amend a defence and add a counterclaim should be granted after the plaintiff has closed his case

Holding

Application dismissed; the proposed amendments were immaterial, changed the character of the case, and were brought in bad faith as an afterthought

Reasoning

The court exercised its discretion under Order 8 of the Civil Procedure Rules, applying the Kassam v Bank of Baroda principles and Halsbury's guidance. The suit had been pending over seven years; the amendments were largely further denials already covered by general denials, and the prescription/limitation counterclaim was new and late. The 1st Defendant had occupied the property since 1985 and could not claim ignorance of the access road. Allowing the amendments after closure of the plaintiff's case would prejudice him.

02

Whether limitation and prescription issues could be introduced by amendment

Holding

No; the 1st Defendant had earlier raised a preliminary objection without raising limitation or jurisdiction, and raising them now via amendment was an afterthought

Reasoning

The court noted the 1st Defendant's 2017 preliminary objection was dismissed because the issues were matters of fact, not pure points of law. Limitation and prescription were not raised then, and introducing them through a counterclaim amendment years later, after the plaintiff closed his case, lacked good faith and sufficient explanation.

p. 6

Legal principles established

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  • Amendment of pleadings should ordinarily be allowed unless it causes prejudice, changes the character of the case, or is made in bad faith; late amendments require explanation

Court orders

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  1. 1.The application dated December 2, 2022 is dismissed with costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 rule 3; Order 8 rule 5
  • Limitation of Actions Actgenerally (prescription claim)

Cases cited (13)

  • Institute for Social Accountability and another v Parliament of Kenya and 3 others
    [2014] eKLR

    Support for granting leave to amend pleadings

  • Pinnacle Projects Limited v PCEA, Ngong Parish and another
    [2019] eKLR

    Amendments and additional evidence in support

  • Hangover Kaakwacha Hotel Ltd v Philip Adundo and Leonard Adundo t/a Hangover Kaakwacha Hotel
    [2022] eKLR

    Supporting the application for amendment

  • Kassam Versus - Bank of Baroda (Kenya) Limited
    (2002) 1 KLR 294

    Requirements for amendment: good faith, no uncompensatable injury, no abuse, necessity, no change of character

  • Julius Njiraini Nyamu v Henry Mburu Marungo and 3 others
    [2021] eKLR

    Amendments cannot fill gaps in a party's case

  • Lawrence Kinyua Mwai v Nyariginu Farmers Co. Ltd and another
    [2019] eKLR

    Amendments cannot fill gaps in a party's case

  • J.C Patel v D. Joshi
    [1952] 19 EACA 12

    Precondition: prejudice or injustice affecting accrued rights not compensable by costs

  • Daniel Ng'etich and another –v- K-Rep Bank Limited
    [2013] KLR

    Precondition of prejudice or injustice to the other party

  • Richard Omare Moreka (Suing as the administrator of the estate of the late Eresta Mong'ina Moreka) –v- Peter Mabuka and 9 others
    [2021] eKLR

    Consequences of late amendment after close of a party's case

  • David Kitonyi and 4 others –v- Joseph M. Nzioka
    [2018] eKLR

    Amendments of no value to determination of the suit

  • Abdul Karim Khan –v- Mohamed Roshan
    [1965] EA 289

    Amendment principles as applied in later authority

  • Catherine Koriko and 3 others –v- Evaline Rosa
    [2020] eKLR

    Adopting Abdul Karim Khan on amendments

  • Rose Kandie & Anor V Esther Jepkemboi Kiplangat
    (2016) eKLR

    Late amendments after close of plaintiff's case occasion injustice and should be rejected

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; amendment of pleadings under Order 8 of the Civil Procedure Rules

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, "Kiarie v Bei International Limited t/a Scorpio Villas & 3 others", Case Analysis (2023). Environment & Land Case 159 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19346/eng@2023-08-25

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