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ELCAllowedNot stated in the extract· [2024] KEELC 3719 (KLR)

Mwakisha (Chairman) & 2 others (Suing as officials of Jesus Worship Sanctuary) v Maghanga & another (Environment & Land Case 303 of 2017) [2024] KEELC 3719 (KLR)

Environment and Land Court
24 April 2024
730 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court in Mombasa allowed a defendant to add a counterclaim mid-case, confirming amendments are freely permitted when they help resolve everything in one suit.

What this practically means

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Executive summary

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This ruling by N.A. Matheka, Judge, delivered at Mombasa on 24th April 2024, determined a notice of motion dated 18th November 2022 by the 2nd Defendant, brought under Sections 1A and 3A of the Civil Procedure Act and Orders 7, 8 and 51 of the Civil Procedure Rules, seeking leave to amend his statement of defence to include a counterclaim, with the draft amended pleading deemed filed upon payment of the requisite fee and costs in the cause. The application was supported by an affidavit of Gloria Nduku, Advocate, on the grounds that taking the 2nd Defendant's statement revealed the need to plead a counterclaim, and that no prejudice would be suffered as the matter was at a preliminary stage. The 1st Plaintiff opposed via a replying affidavit sworn 30/1/2024, alleging bad faith and a tactic to mislead the court. The court framed a single issue: whether the prayers could be allowed. Relying on section 100 of the Civil Procedure Act and the authorities Joseph v Elena Chepkurgat Talam and Central Kenya Limited v Trust Bank Limited, the court noted the proposed counterclaim sought eviction of the Plaintiff and 1st Defendant and a permanent injunction for breach of contract, while the Plaintiff sought an injunction and specific performance over LR No 5051/II/MN. Finding the counterclaim capable of conclusive determination in the suit without a fresh filing, and consistent with the overriding objective and quick disposal, the court granted the application as prayed, with costs in the cause.

Key legal issues

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Whether leave should be granted to the 2nd Defendant to amend the statement of defence to include a counterclaim

Holding

Leave granted; the counterclaim raises issues conclusively determinable in the suit and promotes quick disposal

Reasoning

The court invoked the general power to amend under section 100 of the Civil Procedure Act, a discretionary power exercisable at any stage. Guided by the authorities on amendment, it found the proposed counterclaim (seeking eviction and a permanent injunction for breach of contract) would allow the entire controversy to be determined in one suit without a fresh filing, and that the matter was still at a preliminary stage so no prejudice would be suffered.

Legal principles established

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  • The overriding consideration in an application for leave to amend is whether the amendments are necessary for determining the suit and whether delay would prejudice the opposite party beyond compensation in costs
  • Amendments are allowable where necessary to determine the real question in controversy or avoid multiplicity of suits, absent undue delay, new or inconsistent cause of action, affected vested rights, or injustice to the other side

Court orders

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  1. 1.The 2nd Defendant granted leave to amend his statement of defence and include a counterclaim
  2. 2.The draft amended statement of defence and counterclaim deemed duly filed upon payment of requisite fee
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 7 Rules 3 & 8
  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 8 Rule 5(1)
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (2)

  • Joseph v Elena Chepkurgat Talam (sued as the legal administrator of the estate of the late Kiptalam Arap Kogo)
    (2019) eKLR
  • Central Kenya Limited v Trust Bank Limited
    (2000) 2 EA 365
Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act; Order 7 Rules 3 & 8, Order 8 Rule 3 and Order 51 Rule 1 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, "Mwakisha (Chairman) & 2 others (Suing as officials of Jesus Worship Sanctuary) v Maghanga & another (Environment & Land Case 303 of 2017) [2024] KEELC 3719 (KLR)", Case Analysis (2024). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3719/eng@2024-04-24

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