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ELCDismissedApplication dated 22nd January 2024· [2024] KEELC 5776 (KLR)

Bivwanda v Ngala & 3 others (Environment & Land Case 291 of 2016) [2024] KEELC 5776 (KLR)

Environment and Land Court
24 July 2024
EMEK Makori
1,174 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused a late attempt to rewrite a land claim, warning that amendments introducing old, time-barred issues will be rejected.

What this practically means

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Executive summary

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The applicant sought to amend the plaint in a land suit filed in 2016, so as to introduce matters arising from Malindi Succession Cause No. 36 of 1980 and its annulment in Succession Application No. 2 of 1982, and to join the Director of Land Adjudication and Settlement as a 5th Defendant. The applicant contended that the 1st defendant had fraudulently obtained registration of the suit property by declaring Kalume Nyevu dead while he was alive, that the 1982 annulment cancelled that claim, and that fraudulent schemes persisted including purported subdivision and sale to third parties, including the 4th defendant. The 4th defendant opposed, arguing the amendment introduced a new, time-barred cause of action late in a matter already part-heard for over eight years, with both the plaintiff and the 4th defendant having testified, and constituted an abuse of process. The court, applying Section 100 of the Civil Procedure Act and Order 8 Rules 3 and 5, and the decision in John Nyagaka Osoro v Reynold Karisa Charo, held that although amendments may be made at any stage, the discretion must be exercised judiciously. A late amendment introducing new 1980 and 1982 matters would alter the suit's architecture and introduce a claim vulnerable to the Statute of Limitations. The proper remedy was an application to reopen and enforce the existing decisions. The application was dismissed with costs and the matter directed to proceed to conclusion as scheduled.

Key legal issues

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01

Whether an amendment of the plaint should be allowed at a late stage of the trial

Holding

The amendment was refused; it sought to introduce matters from 1980 and 1982 constituting a new and potentially time-barred cause of action, and a new party whose role was not aligned to the proceedings

Reasoning

The court accepted that amendments are permitted at any stage before judgment under Section 100 of the Civil Procedure Act and Order 8 of the Rules, but the discretion must be exercised judiciously. The suit, filed in 2016, was at defence stage with the plaintiff and 4th defendant having testified. Introducing 1980 and 1982 succession matters and the Director of Land Adjudication would alter the suit's architecture, introduce a stale claim vulnerable to the limitation statute, and the proper course would be an application to reopen and enforce the existing court decisions.

p. 3

Legal principles established

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  • The power to amend pleadings derives from Section 100 of the Civil Procedure Act and Order 8 of the Civil Procedure Rules, exercisable at any stage before judgment but subject to the court's judicious discretion
  • A late amendment will be refused where it introduces a new cause of action that is time-barred or would change the character of the suit

Court orders

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  1. 1.Application dated 22nd January 2024 is dismissed with costs
  2. 2.The matter is to proceed to a conclusion as scheduled

Authorities

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Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 8 Rule 5

Cases cited (1)

  • John Nyagaka Osoro v Reynold Karisa Charo and five others
    [2021]
Jurisdiction invoked
Sections 100 and Order 8 Rules 3 and 5 of the Civil Procedure Act and Civil Procedure Rules (amendment of pleadings)

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, "Bivwanda v Ngala & 3 others (Environment & Land Case 291 of 2016) [2024] KEELC 5776 (KLR)", Case Analysis (2024). Application dated 22nd January 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5776/eng@2024-07-24

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