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ELCAllowedNot stated in the judgment as provided· [2024] KEELC 3348 (KLR)

Ngigi & 4 others v Mbaria & 2 others (Environment & Land Case 115 of 2023) [2024] KEELC 3348 (KLR)

Environment and Land Court (implied; Nairobi)
22 April 2024
MOMogeni
1,321 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed property plaintiffs to add fraud and forgery claims mid-case, ruling amendments should be freely allowed before judgment if fair to the other side.

What this practically means

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Executive summary

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The plaintiff/applicant, through Gladwell Wairimu Ngigi, a guardian managing the accounts and properties of her incapacitated father who suffers from dementia, moved the court by Notice of Motion dated 17/11/2023 under Order 8 Rules 1, 3 and 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking leave to amend the plaint. The amendment sought to introduce findings of a forensic examination which, according to the applicant, revealed fraud, misrepresentation and forgery of signatures in the transfer of property number 36/VII/1023 (originally 36/VII/232). The defendants opposed through grounds of opposition filed on 22/01/2024, terming the application defective, unmeritorious and an abuse of process, arguing the plaintiffs had taken six months after a fishing expedition and that the new issues were irrelevant. The applicant responded that the amendments would expedite fair resolution and that the defendants had not rebutted her averments, citing two eKLR authorities. Parties canvassed the application by written submissions. The court framed a single issue: whether the applicant deserved the orders sought to amend the plaint. Relying on Order 8 Rules 1 and 3, and the authorities of Central Kenya Ltd v Trust Bank Ltd, Eastern Bakery v Castelino, St Patrick's Hills School v Bank of Africa and Tildesley v Harper, the court held that amendments before final judgment should generally be allowed if compensable by costs, and declined to delve into the merits, which it found premature and improper. The court allowed the application: leave to amend was granted, the amended plaint to be filed and served upon payment of fees, the defendant allowed 21 days to file an amended defence, and thrown away costs of Kshs. 5,000/= awarded to the defendant.

Key legal issues

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Whether the plaintiff should be granted leave to amend the plaint to plead fraud, misrepresentation and forgery discovered through a forensic examination

Holding

Yes; the application was allowed. An amendment should generally be allowed before final judgment, and no injustice to the defendant was shown that could not be compensated by costs and leave to file an amended defence.

Reasoning

The court applied Order 8 rules 1 and 3 of the Civil Procedure Rules and the settled principles that amendments sought before hearing should be freely allowed if no uncompensatable injustice is caused. The proposed amendments arose out of the same facts concerning the impugned transfer of the suit property. The power is discretionary but must be exercised judicially. The court declined to engage with the merits of the suit, which would be premature at an amendment stage.

p. 3

Legal principles established

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  • Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice to the other side, which can be compensated by costs
  • An amendment may be allowed at any stage of the proceedings on such terms as may be just
  • The power to amend pleadings is discretionary but must be exercised judicially

Court orders

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  1. 1.Leave granted to the plaintiff to amend its plaint in terms of the draft amended plaint annexed to the application
  2. 2.The draft amended plaint to be duly filed and served upon payment of the requisite fees
  3. 3.The defendant granted leave of 21 days from the date of service to file an amended defence if need be
  4. 4.Defendant granted thrown away costs of the application of Kshs. 5,000/=, to be paid by the plaintiff before the next hearing

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rules 1, 2, 3 (including 3(5)) and 7
  • Civil Procedure RulesOrder 51 Rule 14
  • Civil Procedure ActSection 3A

Cases cited (6)

  • Central Kenya Ltd & 4 Others vs Trust Bank Ltd
    CA Civil Appeal No. 222 of 1998
  • Eastern Bakery v Castelino
    (1958) EA 461 (U)
  • St Patrick's Hills School Limited v Bank of Africa Kenya Limited
    eKLR (2018)
  • Tildesley v Harper
    (1878) 10 Ch D 296
  • Kennedy Otieno Odiyo & 12 Others vs Kenya Electricity Generating Company Ltd
    [2010] eKLR
  • Faustina Njeru Njoka vs Kimunye Tea Factory Limited
    [2022] eKLR
Jurisdiction invoked
Order 8 Rules 1, 3 & 7 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Ngigi & 4 others v Mbaria & 2 others (Environment & Land Case 115 of 2023) [2024] KEELC 3348 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3348/eng@2024-04-22

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