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ELCDismissed· [2024] KEELC 5824 (KLR)

NICHOLAS KUNDU WANYAMA v BENSON KOSGEY KIBET & another

Environment and Land Court
23 July 2024
JOJ.M ONYANGO
2,174 words in judgment
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The bottom line

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The Environment and Land Court in Eldoret refused a plaintiff's bid to amend his pleadings and reopen his case, ruling the request was an afterthought.

What this practically means

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Executive summary

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By a Notice of Motion dated November 23, 2023, the Plaintiff sought leave to amend his Plaint in terms of a Draft Amended Plaint, leave to recall himself and the Uasin Gishu County Surveyor to produce survey records and mutation forms relating to L.R No. 10492/Emtin Farm and the resulting parcels Eldoret Municipality Block 21 (King'ong'o)/17 and /1940, alternatively leave for his advocate to produce a letter dated July 25, 2022, and leave to file a Supplementary List of Documents. He argued that new evidence from the Survey Department emerged after he closed his case. Both Respondents opposed, contending that a similar amendment application had been dismissed on October 30, 2018, rendering the new application res judicata, that the court was functus officio, that the application was made after inordinate delay and in bad faith to fill gaps arising in cross-examination, and that the documents had long been in the Applicant's possession. The court framed two issues: whether leave to amend should issue, and whether the case should be reopened. Relying on Order 8 Rule 3 of the Civil Procedure Rules and the principles in Ochieng v First National Bank of Chicago, the court reaffirmed its wide but judicially exercisable discretion over amendments. It held the amendment prayer res judicata given the earlier dismissed application, and declined to reopen the case because the Plaintiff had voluntarily closed it and the documents were an afterthought. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the Plaintiff should be granted leave to amend his Plaint

Holding

Refused; the prayer is res judicata given the earlier dismissed application of 30th October 2018

Reasoning

Order 8 Rule 3 confers a wide discretion to allow amendments at any stage to determine the true merits, exercised judicially. However, the Plaintiff had already sought a similar amendment in an application dismissed on 30th October 2018, which he neither appealed nor sought to review. Allowing the identical amendment again would amount to the court sitting on appeal on its own ruling; the prayer is therefore res judicata and cannot be entertained.

p. 4
02

Whether the Plaintiff should be allowed to reopen his case

Holding

Refused; the Plaintiff voluntarily closed his case and no satisfactory reason justified reopening

Reasoning

It was common ground that the Plaintiff voluntarily closed his case. The documents sought to be produced - the 1991 sale agreement and the letter of 25th July 2022 - had been in his possession or that of his counsel for a long time before he testified. The court found the explanations unsatisfactory and declined to exercise its discretion in the Applicant's favour, dismissing the application.

p. 5

Legal principles established

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  • A prayer for amendment that was the subject of a prior dismissed application is res judicata
  • The court has a wide discretion to allow amendment of pleadings at any stage, to be exercised judicially and on such terms as to costs as may be just
  • Reopening a voluntarily closed case requires satisfactory reasons; absence of good reason justifies refusal

Court orders

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  1. 1.The application dated November 23, 2023 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3(1)
  • Civil Procedure RulesOrder 8 Rule 3(5)
  • Civil Procedure RulesOrder 7
  • Civil Procedure Actsection 7
  • Limitation ActNot specified (referred to generally as 'the Limitations Act')

Cases cited (5)

  • Ochieng & 2 Others v First National Bank of Chicago
    (1995) EALR; Civil Appeal No. 147 of 1991
  • St. Patrick's Hill School v Bank of Africa Kenya Limited
    [2018] eKLR
  • Reg v Gaming Board ex Benaline
    1970 2 QB 17
  • Josiah Magena v Wakenya Pamoja Sacco Society Ltd
    Nrb ELRC Cause no. 510 of 2014
  • Institute for Social Accountability & Another v Parliament of Kenya & 3 others
    [2014] eKLR
Jurisdiction invoked
Order 8 Rule 3(1) and Order 8 Rule 3(5) of the Civil Procedure Rules; court's inherent discretion over amendment of pleadings and reopening of a party's case

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, "NICHOLAS KUNDU WANYAMA v BENSON KOSGEY KIBET & another", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5824/eng@2024-07-23

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