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ELCPartially AllowedNot stated in the judgment (ruling on Notice of Motion dated 6th May 2024)· [2024] KEELC 5601 (KLR)

Mayfair Establishments Ltd v Taib (Sued as the Legal Representative of the Estate of Sheikh Ali Taib Bajaber - Deceased) & 3 others (Environment & Land Case 99 of 2022) [2024] KEELC 5601 (KLR)

Environment and Land Court
30 July 2024
5,242 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a defendant to amend her defence but refused a late adverse possession counter-claim because pleadings had closed.

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 (Hon. L.L. Naikuni, J) on a Notice of Motion dated 6th May 2024 by Catherine Nemali Wekesa, the 4th Defendant, seeking leave under Order 8 Rule 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act to amend her Statement of Defence dated 26th September 2022 so as to introduce a Counter-Claim for adverse possession. The Plaintiff served no Replying Affidavit submissions that the court could access, so the court determined the application on the material before it, including the 4th Defendant's written submissions. The court framed two issues: whether the amendment should be allowed, and who bears costs. It reviewed the law on amendment of pleadings (Order 8 Rules 1-6, Section 100 CPA, Joseph Ochieng, St. Patrick's Hill School, K K Lodgit) and the importance of pleadings (Dakianga Distributors, Adetoun Oladeji, Raila Odinga). It held that although amendments should be freely allowed absent prejudice, the proposed Counter-Claim came after pleadings had closed, bypassed the concluded pre-trial conference, and failed to satisfy the requirements of Order 7 Rules 1-5, and would amount to re-opening pleadings through the back door. The court allowed the amendment strictly to the prayers sought - excluding the Counter-Claim - granted the 4th Defendant 15 days to file the Amended Defence with corresponding leave to the Plaintiff to respond, set the matter for hearing of the Defence case on 12th November 2024, and made no orders as to costs.

Key legal issues

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01

Whether leave should be granted to amend the Statement of Defence to introduce a Counter-Claim for adverse possession

Holding

Leave to amend was granted strictly to the prayers sought but without permitting introduction of a Counter-Claim at that late stage, since pleadings had closed, the amendment would introduce new issues through the back door, and the requirements of Order 7 Rules 1-5 had not been satisfied

Reasoning

The court reviewed Order 8 Rules 1-6 and Section 100 of the Civil Procedure Act, and the principles in Joseph Ochienga and St. Patrick's Hill School on amendment. While amendments should be freely allowed where no prejudice is caused, they must not change the character of the case. Pleadings had closed two years earlier under Order 2 Rule 13, and the proposed Counter-Claim was unaccompanied by the documents required by Order 7 Rule 5, having bypassed the concluded pre-trial conference. Allowing it would re-open the case and constitute an abuse of process.

p. 9
02

Costs of the application

Holding

The court declined to award costs, holding that costs follow the event under Section 27(1) of the Civil Procedure Act but electing to make no order as to costs

Reasoning

The court restated that costs are discretionary and follow the event per Section 27(1) of the Civil Procedure Act, citing Supreme Court decisions. It concluded the event did not warrant an award of costs and made none.

p. 9

Legal principles established

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  • Amendments of pleadings should be freely allowed unless they cause prejudice to the other party, must be made in good faith, and must not change the character of the case or deprive the other side of its legal rights
  • Parties are bound by their pleadings and no party may raise a new ground of claim inconsistent with previous pleadings in the same suit
  • A Counter-Claim filed with a Defence must conform to Order 7 Rules 1-5 of the Civil Procedure Rules, including being accompanied by affidavit, list of witnesses, written statements and documents

Court orders

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  1. 1.The Notice of Motion Application dated 6th May 2024 is found to have merit and is allowed strictly onto the prayers sought (leave to amend the Statement of Defence dated 26th September 2022, excluding introduction of a Counter-Claim at this stage)
  2. 2.The 4th Defendant/Applicant is granted leave to file and serve her Amended Defence within 15 days of the ruling
  3. 3.The Plaintiff/Respondent is granted corresponding leave of 15 days to file and serve responses to the Amended Defence
  4. 4.The matter to be heard on 12th November 2024 for the Defence case
  5. 5.There shall be no orders as to costs
Jurisdiction invoked
Inherent jurisdiction under Section 3A of the Civil Procedure Act, Cap 21 and Order 8 Rule 3 of the Civil Procedure Rules, 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, "Mayfair Establishments Ltd v Taib (Sued as the Legal Representative of the Estate of Sheikh Ali Taib Bajaber - Deceased) & 3 others (Environment & Land Case 99 of 2022) [2024] KEELC 5601 (KLR)", Case Analysis (2024). Not stated in the judgment (ruling on Notice of Motion dated 6th May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5601/eng@2024-07-30

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