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ELCAllowedNot stated in the judgment (suit filed 19th September, 2022)· [2024] KEELC 5315 (KLR)

Mugambi & another (Suing as the legal representatives of Raphael Mugambi) & 6 others v Opiyo & 14 others (Environment & Land Case E018 of 2022) [2024] KEELC 5315 (KLR)

Environment and Land Court
18 July 2024
CYC.K Yano
1,325 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed land dispute plaintiffs to amend their case to sue on behalf of deceased relatives, confirming that pre-trial amendments are freely allowed when opponents can be compensated by costs.

What this practically means

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Executive summary

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The plaintiffs applied by notice of motion dated 29th January, 2024, under Order 8 Rule 3(1) and Order 51 of the Civil Procedure Rules 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, for leave to amend their plaint filed on 19th September, 2022. The proposed amendments, set out in a draft amended plaint annexed to a supplementary affidavit, were to indicate that Cecilia Nyoroka Mugambi and Lucy Karimi Mugambi sue as legal representatives of Raphael Mugambi, that Felicity Kanana Maingi sues as legal representative of the estate of Francis Maingi, to delete Alice Mugambi, James Mburugu Mugambi and Ambrose Munyua, and to add Jason Mwenda Mathiu as the 15th defendant. The 1st to 9th defendants opposed through a replying affidavit of the 4th defendant, contending that no draft amended plaint had been attached, that the application was misconceived, and that they would suffer prejudice in an old matter prone to delay. Justice C.K Yano held that the draft had in fact been annexed following leave of 13th February, 2024, and that amendments should be freely allowed at any stage where no injustice or prejudice results, applying Order 8 Rule 3, section 100 of the Civil Procedure Act and the Eastern Bakery v Castalino principle. Finding no demonstrated prejudice, that the trial had not started, and that costs would adequately compensate the respondents, the court allowed the application, directing the plaintiffs to file and serve the amended plaint within 14 days, with the defendants having 14 days from service to file amended defences.

Key legal issues

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01

Whether leave to amend the plaint should be granted

Holding

Leave to amend granted; no prejudice or injustice demonstrated by the respondents, and the trial had not started so respondents can be compensated by costs.

Reasoning

The court invoked Order 8 Rule 3 and section 100 of the Civil Procedure Act, which donate a discretionary power to amend pleadings at any stage to determine the real question in controversy. The respondents failed to demonstrate prejudice. The amendments would properly describe the plaintiffs as legal representatives of deceased persons' estates and add a defendant, avoiding multiplicity of suits. The trial had not begun, and costs would compensate the respondents.

p. 4
02

Whether failure to attach the draft amended plaint defeated the application

Holding

No, because the draft amended plaint was subsequently annexed to a supplementary affidavit filed with the court's leave.

Reasoning

The 1st to 9th respondents argued the applicants had not attached a draft amended plaint, leaving them in the dark. The court noted that following leave granted on 13th February, 2024, the applicants filed a supplementary affidavit dated 16th February, 2024 annexing the draft amended plaint marked 'AM 1', and proceeded to determine the application on that basis.

p. 2

Legal principles established

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  • Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice, and there is no injustice if the other side can be compensated by costs.
  • The court has discretionary power to amend pleadings at any stage before judgment for purposes of determining the real question in controversy, to be exercised judiciously.

Court orders

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  1. 1.The notice of motion dated 29th January, 2024 is allowed as prayed
  2. 2.The plaintiffs are directed to file and serve the amended plaint within 14 days of the ruling
  3. 3.The defendants are given 14 days from the date of service to file amended defences, if any

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 8 Rule 3(1)
  • Civil Procedure Rules, 2010Order 8 Rule 5
  • Civil Procedure Rules, 2010Order 51 Rules 1, 3 and 4
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure ActSection 100

Cases cited (1)

  • Eastern Bakery and Castalino
    (1958) EA 461
Jurisdiction invoked
Order 8 Rule 3(1), Order 51 Rules 1, 3 and 4 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act (and section 100)

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, "Mugambi & another (Suing as the legal representatives of Raphael Mugambi) & 6 others v Opiyo & 14 others (Environment & Land Case E018 of 2022) [2024] KEELC 5315 (KLR)", Case Analysis (2024). Not stated in the judgment (suit filed 19th September, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5315/eng@2024-07-18

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