Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially Allowed· [2024] KEELC 728 (KLR)

Dodhia & another v County Government of Trans Nzoia & another (Land Case 11 of 2019) [2024] KEELC 728 (KLR)

Environment and Land Court (sitting at Kitale)
19 February 2024
FNFRED NYAGAKA
4,287 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

A Kenyan court struck out an amended land lawsuit because it secretly changed the claim far beyond what had been agreed, warning that court-approved amendments must stay within their limits.

What this practically means

#

Executive summary

#
The 2nd Defendant, Eric Wafula, moved the Court by Notice of Motion dated 12/07/2023 under Order 2 Rule 15(1)(c) and (d) and Order 8 Rules 3(1) and (5) of the Civil Procedure Rules, 2010, seeking to strike out the Plaintiffs' Amended Plaint dated 09/11/2022 and for leave to amend his Statement of Defence by introducing a Counterclaim. He argued that the consent that enjoined Vipul Ratilal Dodhia as 2nd Plaintiff was obtained without disclosure of the draft Amended Plaint, which radically altered the character of the suit, removed the original suit land (LR No. 6624, Original No. 1792/4, registered as Kitale Municipality Block 32/2) and effectively displaced the 1st Plaintiff's claim, in disregard of a status quo order issued on 25/03/2019. The Plaintiffs opposed, citing the Applicant's indolence, delay and alleged unclean hands, while the 1st Defendant supported the application. The court framed three issues. On the first, it compared the prayers in the application dated 14/12/2021 with the consent orders and the Amended Plaint, found that no draft Amended Plaint had been annexed, and held that the amendments sneaked in a completely new claim amounting to the clearest abuse of the process of the Court; the Amended Plaint was struck out, together with subsequent Amended Defences and Replies. On the second issue, since the suit had not proceeded to hearing and amendments are freely allowed to determine real issues in controversy, leave was granted to the 2nd Defendant to file an Amended Statement of Defence with a Counterclaim within ten days, factoring in that Dodhia is not a party but may be enjoined as Plaintiff by Counterclaim. Costs were awarded to the 2nd Defendant, with mention on 14/03/2024 to confirm closure of pleadings.

Key legal issues

#
01

Whether the Amended Plaint should be struck out as an abuse of the process of the Court for exceeding the scope of the consented amendment

Holding

The Amended Plaint was struck out: it went far beyond the consent order which only enjoined the 2nd Plaintiff, substituted the entire claim, removed the original suit land and the 1st Plaintiff's case, and reliefs were framed for the 2nd Plaintiff only.

Reasoning

The consent of 14/10/2022 only enjoined Vipul Ratilal Dodhia as 2nd Plaintiff. The court compared the prayers in the application dated 14/12/2021 with the Amended Plaint and found the amendments introduced a wholly new claim, removed Land Reference No. 6624 (Original No. 1792/4), nearly removed the 1st Plaintiff, and sought reliefs for the 2nd Plaintiff alone. Withholding the draft amended Plaint from the consent amounted to the clearest abuse of process warranting the draconian remedy of striking out.

p. 7
02

Whether the 2nd Defendant should be granted leave to amend his Statement of Defence to introduce a Counterclaim

Holding

Leave was granted; amendments are freely allowed before hearing to determine the real issues in controversy, and laches did not bar the relief since the suit has not proceeded to hearing.

Reasoning

The court found the application was brought under the proper provisions (Order 8 Rules 3 and 5, and Section 100 of the Civil Procedure Act). Because pleadings had closed, leave was required and could be granted. The court agreed with the Plaintiffs' submission that amendments are freely allowed to determine the real issues, and since the suit had not gone to hearing, the amendment was allowed, conditioned on the Counterclaim enjoining Dodhia as Plaintiff.

p. 7
03

Whether the Amended Plaint was on the court record at the time of the consent

Holding

The court found, from the record of the application dated 14/12/2021, that no draft Amended Plaint was annexed or referred to; the Respondent's claim to the contrary was false.

Reasoning

The supporting affidavit of Vipul Ratilal Dodhia sworn on 14/12/2021 referred only to five annexures (certified searches for parcels 32/68, 69, 70, 71 and 88) and made no reference to a draft Amended Plaint. The court therefore held that the Amended Plaint entered the record only after the consent was adopted, and that Dodhia's affidavit assertion to the contrary was untrue.

p. 6

Legal principles established

#
  • Striking out of pleadings is a draconian step to be exercised cautiously and only in the rarest and most clear cases; one ground is where the amendment made does not accord with an order of the Court.
  • Amendments of pleadings must accord with the order of the Court granting the amendment.
  • Abuse of process includes using the Court's process for a purpose other than a just determination of a dispute.

Court orders

#
  1. 1.The Amended Plaint dated 09/11/2022 is struck out as an abuse of the process of the Court
  2. 2.The Amended Statement of Defence dated 20/12/2023, that dated 07/03/2023 and any Replies to the Defences filed in relation to the struck-out Amended Plaint are of no effect and are struck out
  3. 3.Leave granted to the 2nd Defendant to amend his Statement of Defence and file the Amended Statement of Defence and serve within ten (10) days, with the amendment factoring that Vipul Ratilal Dodhia is not a party but is to be enjoined as a Plaintiff by way of Counterclaim
  4. 4.Costs of the Application to be borne by the Plaintiffs/Respondents
  5. 5.Mention on 14/03/2024 to confirm closure of pleadings

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 2 Rule 15(1)(c) and (d)
  • Civil Procedure Rules, 2010Order 8 Rules 3(1) and (5)
  • Civil Procedure Rules, 2010Order 8 Rule 1
  • Civil Procedure ActSection 100
  • Contempt of Court ActSection 5

Cases cited (12)

  • Simon Kirima Muraguri & another v. Equity Bank (Kenya) Limited & another
    CC No. E004 of 2020
  • Econet Wireless Kenya Limited vs. Minister for Information & Communication of Kenya Authority
    [2005] eKLR
  • T. N. Gadavarman Thiru Mulpad v Ashok Khot & another
    [2005] 5 SCC
  • Gulabchand Popatlal Shah & another
    Civil Application No. 39 of 1990 (unreported)
  • Hadkinson v. Hadkinson
    (1952) 2 All ER 567
  • Ephraim Miano Thanmani v Nancy Wanjiru Wangai & 2 others
    [2022] eKLR
  • Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 others
    Civil Appeal No 25 of 2002 (2009) eKLR 229
  • Chairman, Secretary and Treasurer, School Management Committee of Sir Ali Bin Salim Primary School & Another vs. Francis Bahati Diwani & 2 others
  • D.T. Dobie & Company (Kenya) Limited vs Joseph Mbaria Muchina & another
    [1980] eKLR
  • Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & others
    (2013) eKLR
  • Almond Resort Limited vs. Mohamed Mahat Kuno
    [2019] EKLR
  • D.Manji Construction Limited v Farmers Industry Limited
    [2020] eKLR
Jurisdiction invoked
Order 2 Rule 15(1)(c) and (d) and Order 8 Rules 3(1) and (5) of the Civil Procedure Rules, 2010; Section 100 of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Dodhia & another v County Government of Trans Nzoia & another (Land Case 11 of 2019) [2024] KEELC 728 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/728/eng@2024-02-19

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