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ELCAllowedNot stated on the face of the judgment (Thika ELC suit; Nairobi ELC No 22 of 2013 referenced)· [2024] KEELC 1785 (KLR)

Mwangi & 4 others (Suing as Administrator Ad Litem and Children of the Estate of George Kungu Wainaina - Deceased) v Kungu & 3 others (Environment & Land Case 83 of 2018) [2024] KEELC 1785 (KLR)

Environment and Land Court
9 April 2024
JKJ G Kemei
1,094 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 at Thika allowed a late request to amend a land lawsuit, but punished the delay by awarding costs against the applicants.

What this practically means

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Executive summary

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The Plaintiffs/Applicants moved the Environment and Land Court at Thika by Notice of Motion dated 18/4/2023 seeking leave to amend the Plaint, principally to remove a prayer directing the 1st Defendant to commence succession proceedings over the estate of George Kungu Wainaina. The application was supported by the affidavit of Rosemary Wangari Mwangi, who argued that the amendments would bring on board all issues for determination, cause no prejudice, and that the court lacked jurisdiction over succession matters, which fall to the High Court. The 1st Defendant, Joyce W. Kungu, opposed the application as an abuse of court process, citing the applicant's history of forum shopping - filing a Nairobi suit in 2013, then this Thika suit in 2018, withdrawing the Nairobi suit to defeat a preliminary objection, and initiating a citation in a succession cause. Only the applicant filed submissions. The court, applying Section 100 of the Civil Procedure Act and Order 8 Rules 3 and 5 of the Civil Procedure Rules, held that amendments sought before hearing should be freely allowed and that the object of amendment is to ensure litigation proceeds on the true state of facts. Although agreeing that the court lacks jurisdiction over succession matters, the court deprecated the applicants' eleventh-hour filing as dilatory. In the interest of justice, the application was allowed on terms: the Amended Plaint to be filed and served within fourteen days, defendants at liberty to amend their defences, costs of the application borne by the applicants in favour of the 1st Defendant, and parties directed to expeditiously fix the suit for hearing.

Key legal issues

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01

Whether leave to amend the Plaint should be granted at the eleventh hour before hearing

Holding

Allowed on terms: the amendment removing a succession-related prayer was permitted, but with costs to the 1st Defendant because of the Applicants' delay

Reasoning

The court recognised that amendments sought before hearing should be freely allowed and that the amendment removed a prayer outside the court's jurisdiction. However, the applicants waited until the matter was fixed for hearing, causing delay and backlog. Balancing the interest of justice against the dilatory conduct, the court allowed the amendment on terms: filing within 14 days, liberty to amend defences, and costs against the applicants.

p. 3

Legal principles established

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  • Amendments to pleadings sought before hearing should be freely allowed, but dilatory late applications cause unnecessary delay and should be frowned upon
  • The object of amendment of pleadings is to enable litigation to be conducted on the true state of facts

Court orders

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  1. 1.Applicants to file and serve the Amended Plaint within fourteen (14) days
  2. 2.Upon service, Defendants at liberty to amend their Statements of Defence
  3. 3.Costs of the Application borne by the Applicants in favour of the 1st Defendant
  4. 4.Parties to expeditiously fix the matter for hearing

Authorities

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Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 8 Rule 5

Cases cited (1)

  • Institute for Social Accountability and another v Parliament of Kenya & 3 others
    (2014) eKLR
Jurisdiction invoked
Section 100 of the Civil Procedure Act and Order 8 Rules 3 & 5 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, "Mwangi & 4 others (Suing as Administrator Ad Litem and Children of the Estate of George Kungu Wainaina - Deceased) v Kungu & 3 others (Environment & Land Case 83 of 2018) [2024] KEELC 1785 (KLR)", Case Analysis (2024). Not stated on the face of the judgment (Thika ELC suit; Nairobi ELC No 22 of 2013 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1785/eng@2024-04-09

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