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ELCPartially AllowedELC NO. E010 OF 2022· [2024] KEELC 4457 (KLR)

LOIS WAMBUI THUO v RAMBITI FARM SAW MILL LIMITED

Environment and Land Court
5 June 2024
SKS. M. Kibunja
1,458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed you can amend court documents mid-case, but the amending party pays the other side's costs.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (S. M. Kibunja, J.) on the plaintiff's notice of motion dated September 19, 2023, seeking leave to amend the plaint dated January 31, 2022, and to file a further list and bundle of documents and further witness statements. The plaintiff explained that her former advocate failed to file some documents and that she had discovered further documents evidencing payment of a 30% stake in the defendant; the draft amended plaint also proposed joining the Land Registrar, Mombasa, as second defendant and adding a mandatory injunction prayer. The defendant opposed through grounds of opposition, contending the application was defective, the supporting affidavit by counsel improper, the 30% claim amorphous and prejudicial, and that an injunction prayer had already been dismissed at the interim stage. The court framed three issues: whether a case for leave to amend was made, whether prejudice would be caused, and costs. Applying section 100 of the Civil Procedure Act, Order 8 rules 3 and 5 of the Civil Procedure Rules, Article 159(2)(d) of the Constitution, and Court of Appeal principles in Coffee Board of Kenya v Thika Coffee Mills and Elijah Kipngeno Arap Bii, the court held amendments may be allowed at any stage where necessary to determine the real questions in dispute, provided no injustice is caused. Finding the hearing had not commenced and any prejudice curable by costs, the court granted prayers (a) and (c), with directions for filing amended pleadings and documents (15 days for the plaintiff, 30 days for the defendants) and ordered the plaintiff to pay the defendant's costs of the application.

Key legal issues

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01

Whether leave to amend the plaint and file additional documents and witness statements should be granted after closure of pleadings but before hearing

Holding

Leave granted; amendments to be freely allowed where they do not cause injustice and arise from the same facts.

Reasoning

The court held it has jurisdiction under section 100 of the Civil Procedure Act and Order 8 rules 3 and 5 of the Civil Procedure Rules to allow amendments at any stage. Guided by Court of Appeal principles, it found the proposed amendments consistent with facts already pleaded, that the hearing had not commenced, and any prejudice could be compensated by costs, consistent with Article 159(2)(d).

p. 3
02

Whether the amendments would prejudice the defendant

Holding

No prejudice found; defendants may respond with amended pleadings and documents, and costs suffice.

Reasoning

The court found the hearing had not commenced, so the existing and new defendants would have ample opportunity to file amended defences, statements and documents in rebuttal. The defendant's reliance on a partly-heard matter authority was distinguishable on those facts, and any apprehension of delay or unfairness was adequately met by an award of costs.

p. 3

Legal principles established

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  • Amendment may be allowed at any stage of proceedings if necessary for the determination of the real questions in dispute and to avoid multiplicity of suits.
  • Prejudice to the other party can be cured by an award of costs.

Court orders

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  1. 1.The plaintiff's notice of motion dated September 19, 2023 is granted in terms of prayers (a) and (c).
  2. 2.The plaintiff to file and serve the amended plaint, further witness statements, further list and documents and a properly bound, paginated and consolidated bundle of documents within fifteen (15) days.
  3. 3.Upon service the defendants to be at liberty to file and serve their amended defence/defence, statements and documents, and a properly bound, paginated and consolidated bundle of documents within thirty (30) days.
  4. 4.The plaintiff will pay the defendant's costs in the application notwithstanding section 27 of the Civil Procedure Act.

Authorities

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Legislation

  • Civil Procedure Actsection 100
  • Civil Procedure Actsection 27
  • Civil Procedure RulesOrder 8 rule 3
  • Civil Procedure RulesOrder 8 rule 5(1)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (3)

  • Julius Njiraini Nyamu v Henry Mburu Marungo & others
    [2021] eKLR
  • Coffee Board of Kenya v Thika Coffee Mills Limited & 2 others
    [2014] eKLR
  • Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited
    [2013] eKLR
Jurisdiction invoked
Order 8 rules 3 & 5 of the Civil Procedure Rules; section 100 of the Civil Procedure Act (Chapter 21, Laws of Kenya); Article 159(2)(d) of the Constitution, 2010

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, "LOIS WAMBUI THUO v RAMBITI FARM SAW MILL LIMITED", Case Analysis (2024). ELC NO. E010 OF 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4457/eng@2024-06-05

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