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ELCDismissedNot stated in the extract· [2024] KEELC 1162 (KLR)

University of Nairobi v Silver Clouds Investment Limited & others (suit title not stated in extract; application by Plaintiff to strike out 2nd Defendant's Amended Defence and Counter-Claim)

Environment and Land Court
29 February 2024
2,583 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court allowed a land dispute defendant to amend its defence, add new parties, and pursue a fraud counter-claim, dismissing the University's challenge with costs.

What this practically means

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Executive summary

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The Plaintiff, by a Notice of Motion dated 17th May 2023, sought to strike out the 2nd Defendant's Amended Defence and Amended Counter-Claim dated 13th March 2023, arguing that the 2nd Defendant had prematurely amended its pleadings, introduced a new case, and improperly joined Wilson Gachanja and Silver Clouds Investment Limited as parties to the Counter-Claim without leave of the court. The suit, which was part-heard, concerned the Plaintiff's claim that it purchased the suit property from Silver Clouds in 1995 and that the Defendants had since interfered with its ownership and occupation, for which it sought declarations of ownership, violation of property rights, and damages. The 2nd Defendant opposed the application through a Replying Affidavit, pointing out that Justice David Mwangi had on 8th February 2023 allowed the Plaintiff's own application to amend its Plaint and granted the Defendants unconditional leave to amend their Defences within 14 days of service of the Amended Plaint, which both parties complied with. In determining the application, the court considered Order 8 Rule 3(5) of the Civil Procedure Rules, which permits amendments adding a new cause of action arising out of substantially the same facts, and Order 1 Rule 10(2) on joinder of necessary parties, applying Elijah Kipngeno Arap Bii v Kenya Commercial Bank and Civicon Limited v Kivuwatt Limited. The court held that the amendments arose from the same facts - the alleged fraudulent purchase of the suit property - and that the joined parties were necessary for settling the question of fraud. It further directed that, since new parties had been introduced into a part-heard suit, the matter would commence de novo unless the parties consented otherwise. The Plaintiff's application was dismissed with costs.

Key legal issues

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01

Whether the 2nd Defendant could amend its Defence and Counter-Claim to introduce a new cause of action and new parties

Holding

The amendments were properly filed pursuant to unconditional leave granted by Justice Mwangi; the new cause of action arose out of the same facts (alleged fraudulent purchase of the suit property) and the new parties were necessary

Reasoning

The court noted Justice Mwangi had granted unconditional leave to amend. Order 8 Rule 3(5) permits amendments adding a new cause of action arising from substantially the same facts. The 2nd Defendant's earlier Defence already pleaded fraud and illegality; the amended pleading added particulars and joined Wilson Gachanja and Silver Clouds Investment Ltd, whose alleged acts were central to the title dispute. The joinder was justified under Order 1 Rule 10(2) as the new parties' presence was necessary to settle the question of fraud.

p. 5
02

Whether the joinder of Wilson Gachanja and Silver Clouds Investment Ltd to the Counter-Claim was proper

Holding

Joinder was proper; Silver Clouds faced declaratory reliefs and Gachanja's joinder was necessary to settle the question of fraud

Reasoning

Applying Order 1 Rule 10(2) and Civicon Limited v Kivuwatt Limited, the court held that any party reasonably affected by pending litigation is a necessary and proper party. The 2nd Defendant asserted that acts of illegality were perpetrated through Mr. Gachanja, and sought declaratory reliefs against Silver Clouds. The court considered Gachanja's joinder necessary to settle the fraud question even though no specific relief was sought against him.

p. 5
03

Whether the application was misconceived given the prior order of Justice Mwangi

Holding

Yes; the application was dismissed because the Amended Defence and Counter-Claim were filed in compliance with an existing court order granting unconditional leave to amend

Reasoning

The Plaintiff argued the 2nd Defendant could not lawfully amend before the Plaintiff's own amendment application was determined. The court found this untenable because Justice Mwangi had on 8th February 2023 allowed the Plaintiff's amendment and granted the Defendants unconditional leave to amend within 14 days. The Plaintiff complied and filed its Amended Plaint, and the 2nd Defendant's amended pleadings followed in compliance with that order. The application was therefore misconceived.

p. 5

Legal principles established

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  • An amendment may be allowed notwithstanding that it adds a new cause of action, provided the new cause of action arises out of the same or substantially the same facts (Order 8 Rule 3(5))
  • A party whose presence is necessary for the court to effectually and completely adjudicate on all questions in the suit may be joined at any stage under Order 1 Rule 10(2)
  • Where new parties are introduced after a part-heard suit, unless by consent the matter will commence de novo to give the new parties an opportunity to participate

Court orders

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  1. 1.The Plaintiff's application dated 17th May 2023 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 11

Cases cited (3)

  • Elijah Kipngeno Arap Bii vs Kenya Commercial Bank Limited
    [2013] eKLR
  • Joseph Ochieng & 2 others vs. First National Bank of Chicago
    Civil Appeal No. 149 of 1991
  • Civicon Limited vs Kivuwatt Limited and 2 Others
    [2015] eKLR
Jurisdiction invoked
Not stated in the extract; first-instance civil suit jurisdiction (application under the Civil Procedure Rules, Order 8 Rule 3 and Order 1 Rule 10(2))

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, "University of Nairobi v Silver Clouds Investment Limited & others (suit title not stated in extract; application by Plaintiff to strike out 2nd Defendant's Amended Defence and Counter-Claim)", Case Analysis (2024). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1162/eng@2024-02-29

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