Oreng & another v Ouma (Sued as the legal representative of Pitalis Ogola Ombewa) & 2 others (Environment & Land Case 42 of 2021) [2024] KEELC 782 (KLR)
The bottom line
#A Kenyan land court let plaintiffs swap their adverse possession claim for a different one, but they paid Kshs 4,000 even though nobody objected.
What this practically means
#Executive summary
#Key legal issues
#Whether to allow substitution of an originating summons for adverse possession with an amended plaint
The application was allowed in terms of order No. 2; the amendment was necessary because, on scrutiny of the facts, a case of acquisition by adverse possession did not arise, no prejudice would be suffered as the suit had not been heard inter-partes, and the amendment would determine the real question in controversy.
The suit was originally commenced by originating summons on the understanding that the claim was one of adverse possession. On further instructions, the applicants appreciated that adverse possession did not arise, necessitating an amendment. The respondents raised no objection, confining themselves to costs. Guided by the overriding objective of dispensing justice without delay under Article 159(2)(b), the ELC Act and sections 1A, 3 and 3A of the Civil Procedure Act, the court found the application meritorious and allowed it.
Costs of the unopposed application
Costs follow the event and are within the court's discretion under the proviso to section 27(1) of the Civil Procedure Act; the plaintiffs were ordered to pay the respondents Kshs 4,000/= within 14 days.
Although Miss Agade raised no objection to the amendment, she sought costs. Citing section 27(1) of the Civil Procedure Act and Jasbir Singh Rai v Tarlochan Singh Rai (2014) eKLR, the court held that costs follow the event. It fixed the costs at Kshs 4,000/=, payable within 14 days, rather than making them costs in the cause as the applicants had sought.
Legal principles established
#- An unopposed application for amendment may nonetheless attract costs in favour of the respondents, costs following the event and subject to the court's discretion under the proviso to section 27(1) of the Civil Procedure Act
- Amendments to pleadings are allowed for the purpose of determining the real question in controversy between the parties, provided no prejudice is suffered
Court orders
#- 1.The application is allowed in terms of order No. 2 sought therein, permitting the plaintiffs to amend the originating summons dated 8th November 2016 and substitute it with an amended plaint as per the draft annexed
- 2.The amended pleading be filed and served within 14 days from the date of the ruling
- 3.The plaintiffs/applicants to bear the costs of the application in the sum of Kshs 4,000/= payable within 14 days from the date of the ruling
- Jurisdiction invoked
- Articles 159(2)(b) of the Constitution of Kenya, 2010; sections 3 and 19 of the Environment and Land Court Act, 2015; sections 1A, 3 and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya; Order 8 Rule 3(1) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oreng & another v Ouma (Sued as the legal representative of Pitalis Ogola Ombewa) & 2 others (Environment & Land Case 42 of 2021) [2024] KEELC 782 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/782/eng@2024-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.