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ELCAllowedNot stated in the extract (arising from Othaya ELC Case No. 249 of 2015)· [2024] KEELC 5347 (KLR)

Kahuthia & 6 others v Kiiru s/o Gachuiga aka Joseph Kiiru Gachuiga Substituted By Sammy Maina Kiiiru (Environment & Land Miscellaneous Case E2 of 2021) [2024] KEELC 5347 (KLR)

Environment and Land Court
19 July 2024
JOJ. O. Olola
1,257 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 allowed a defendant to amend his defence late because the delay was his lawyer's oversight, not his own fault.

What this practically means

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Executive summary

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By a Notice of Motion dated 15th September 2023, the Defendant, Sammy Maina Kiiru, sought leave to file an Amended Defence out of time, together with an order that the list of witnesses, witness statement and list of documents filed in Othaya ELC Case No. 249 of 2015 be deemed filed in this suit, with costs in the cause. The application was supported by an affidavit of his counsel, Muhoho Gichimu, who attributed the default to oversight. The 2nd, 3rd, 4th and 7th Plaintiffs opposed, pointing out that the court had on 12th June 2023 granted 14 days to respond to an Amended Plaint and on 30th July 2023 granted 30 days for exchange of witness statements and documents, both of which the Defendant failed to honour, and contending that no plausible explanation was offered. The court considered Section 100 of the Civil Procedure Act and Order 8 Rule 5(1) of the Civil Procedure Rules, and applied Eastern Bakery v Castelino on the free allowance of amendments absent injustice, and Wachira Karani v Bildad Wachira on counsel's default. Finding that the Defendant had availed documents and instructions to counsel and that the failure was counsel's oversight, the court was not persuaded it would be in the interests of justice to deny the amendment. The court allowed the motion, granted the Defendant 14 days to file and serve the Amended Defence, Witness Statement and List of Documents, and awarded costs of the application to the 2nd, 3rd, 4th and 7th Plaintiffs in any event.

Key legal issues

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01

Whether leave to amend pleadings and file documents out of time should be granted despite counsel's oversight

Holding

Leave granted; counsel's oversight should not unfairly bar the Defendant from amending pleadings and filing documents

Reasoning

The court noted the Defendant had been granted two prior opportunities but the failure was attributed to counsel's oversight while the Defendant had availed documents and instructions. Relying on Wachira Karani v Bildad Wachira, the court held a litigant should not bear the consequences of an advocate's default unless privy to it, and no prejudice justifying denial of the amendment was demonstrated.

p. 3

Legal principles established

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  • A litigant should not ordinarily bear the consequences of an advocate's default unless privy to it
  • Amendments to pleadings before hearing should be freely allowed absent injustice

Court orders

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  1. 1.The Motion dated 15th September 2023 is allowed
  2. 2.The Defendant is granted 14 days within which to file and serve the Amended Statement of Defence, his Witness Statement and List of Documents
  3. 3.Costs of the application awarded to the 2nd, 3rd, 4th and 7th Plaintiffs in any event

Authorities

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Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 8 Rule 5(1)

Cases cited (2)

  • Eastern Bakery –vs- Castelino
    [1958] 1 EA 461
  • Wachira Karani –vs- Bildad Wachira
    [2016] eKLR
Jurisdiction invoked
Section 100 of the Civil Procedure Act and Order 8 Rule 5(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, "Kahuthia & 6 others v Kiiru s/o Gachuiga aka Joseph Kiiru Gachuiga Substituted By Sammy Maina Kiiiru (Environment & Land Miscellaneous Case E2 of 2021) [2024] KEELC 5347 (KLR)", Case Analysis (2024). Not stated in the extract (arising from Othaya ELC Case No. 249 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5347/eng@2024-07-19

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