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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 4993 (KLR)

Bombo v Kitumbo & another (Environment & Land Case 307 of 2021) [2024] KEELC 4993 (KLR)

Environment and Land Court
13 February 2024
2,148 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kwale land court allowed a landowner to update his case with new evidence about subdivided titles, but ordered the trial to start afresh.

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 Kwale (A.E Dena, J) on a notice of motion dated 14 June 2023 by the Plaintiff in a land dispute over Kwale/Mwananyamala/321, filed in 2012. The Plaintiff, now represented by new counsel following the demise of his former advocate, sought leave to further amend his amended plaint, to file further witness statements, lists of witnesses and documents, and a reply to defence and defence to counterclaim; witness summons to the District Land Adjudication Officer, Kwale and the Land Registrar, Kwale; and a de novo hearing. The application was prompted by discovery that the green card for the suit property had been closed and two new titles issued upon subdivision, with no records of the subdivision traced at the lands registry, matters relevant to the 1st Defendant's counterclaim alleging fraud in the Plaintiff's title. The 1st Defendant opposed, contending the information was not new and the application was aimed at delay. Applying Order 8 Rules 3 and 5, section 100 of the Civil Procedure Act, and the principles in Ochieng v First National Bank of Chicago and Central Kenya Ltd v Trust Bank, the court allowed the amendment, holding that the contested issue of ownership required full ventilation at trial. It also allowed filing of further documents, issued the witness summons, and ordered the hearing to start de novo, finding no prejudice to the Defendants since only PW1 had testified. The stay of proceedings prayer was overtaken by events. Each party was ordered to bear its own costs. The court cautioned against further delaying tactics in a suit pending since 2012.

Key legal issues

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01

Whether leave to further amend the plaint should be granted at this late stage

Holding

The court allowed the amendment, finding it necessary to determine the true ownership and occupation of the suit property

Reasoning

The court exercised its discretion under Order 8 Rules 3 and 5 and section 100 of the Civil Procedure Act, guided by the Ochieng and Central Kenya Limited principles. Ownership was hotly contested and the allegations of joint ownership could only be unravelled at full trial. Allowing the parties to furnish all relevant documentation would enable a just determination of the real issues.

p. 4
02

Whether further witness statements, lists of documents and pleadings should accompany the amendment

Holding

Allowed, as the new facts pleaded require documentary reinforcement

Reasoning

Relying on Esther Wambui Njenga v Harrison Mwangi Nyota & 2 others, the court held it fair to allow each party to fully ventilate their case so the whole truth is revealed. Documents reinforcing the new pleading are imperative.

p. 4
03

Whether witness summons should issue to the District Land Adjudication Officer and Land Registrar

Holding

Issued, as they are custodians of the relevant records

Reasoning

The court has authority on application by a party to issue witness summons; the records concerning the closure and subdivision of Kwale/Mwananyamala/321 are held in their respective offices, and Dahir Sadik Ausaad supports the power to summon witnesses for trial.

p. 4
04

Whether the hearing should start de novo given that PW1 had testified

Holding

The hearing was ordered to start de novo, no prejudice being occasioned to the Defendants

Reasoning

Only one witness had testified (PW1 on 13/3/2023). The court found no prejudice to the Defendants but cautioned the parties against delaying tactics, noting the suit had been in court since 2012.

p. 4

Legal principles established

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  • Amendments to pleadings may be allowed at any stage of the proceedings for the purpose of determining the real question in controversy, provided no injustice is caused to the other side.
  • Where amendment of a plaint is allowed, the party should also be permitted to file the supporting documents reinforcing the new facts pleaded.

Court orders

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  1. 1.Leave granted to the Plaintiff to further amend the amended plaint dated 19/3/2013 and accompanying pleadings in terms of the draft annexed to the application
  2. 2.Leave granted to the Plaintiff to file a further list of witnesses, further witness statements, a further list of documents and a reply to defence and defence to counterclaim within 15 days
  3. 3.The Defendant granted corresponding leave to respond and file further documents within 14 days of service
  4. 4.The hearing of the main suit to start de novo
  5. 5.Witness summons issued to the District Land Adjudication Officer, Kwale and the Land Registrar, Kwale to attend court and present their respective records for the suit property at the hearing
  6. 6.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 8 Rules 3 & 5; Order 52 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3A and 100
  • Constitution of Kenya 2010Article 159(2)(d)
  • Land Registration Act 2012Section 94(5)
  • Limitation of Actions ActReferenced generally in the Ochieng principles

Cases cited (4)

  • Ochieng and 2 others v First National Bank of Chicago
    (1995) eKLR
  • Central Kenya Limited –v- Trust Bank Limited
    (2000)2 EA 365
  • Esther Wambui Njenga v Harrison Mwangi Nyota & 2 others
    [2018] eKLR
  • Dahir Sadik Ausaad Vs Modogashe Construction Ltd. & 3 Others
    [2016] eKLR
Jurisdiction invoked
Order 8 Rules 3 & 5 and Order 52 Rule 1 of the Civil Procedure Rules 2010, sections 1A, 1B, 3A and 100 of the Civil Procedure Act, Article 159(2)(d) of the Constitution

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, "Bombo v Kitumbo & another (Environment & Land Case 307 of 2021) [2024] KEELC 4993 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4993/eng@2024-02-13

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