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ELCAllowedNot stated in the judgment provided· [2024] KEELC 7036 (KLR)

Kiengo & 2 others v Thuo (Environment & Land Case 92 of 2017) [2024] KEELC 7036 (KLR)

Not expressly stated in the judgment (delivered at Kajiado)
24 October 2024
LKL. Komingoi
1,318 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kajiado court allowed a defendant, even after 17 years of litigation, to join his co-administrators and amend his defence because the change was made in good faith and harmed no one.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 27 October 2023 by the defendant, Kariuki Thuo, seeking the joinder of Mary Njeri Thuo and Paul Kihoro Thuo as co-defendants so that they may act jointly with him as administrators of the estate of Stephen Thuo Kihoro (deceased), and leave to amend the defence and counterclaim accordingly, with the amended document deemed duly filed. The application was brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Orders 1, 8 and 51 of the Civil Procedure Rules. The plaintiff, Andrew Nkiiri Thinya, opposed, arguing the defendant had known of the Grant of Letters of Administration since 2002 and should have sought joinder when the suit was filed in 2007. The court canvassed the motion by written submissions and considered Order 8 rules 3 and 5, which permit amendment at any stage to determine the real question in controversy. Relying on the principles in Elijah Kipngeno Arap Bii v KCB Ltd and Beatrice Gikunda v CFC Life Assurance Ltd, the court held that amendments should generally be allowed if made in good faith and without prejudice to the other side. Examining the draft amended defence, the court found it only introduces the co-administrators, appropriate since the suit property belongs to the deceased's estate, and that any prejudice could be cured by recalling PW2. The court allowed prayers (a) and (b), gave the plaintiff corresponding leave to file additional documents, and ordered the defendants to bear the costs. Delivered virtually at Kajiado on 24 October 2024 by L. Komingoi, Judge.

Key legal issues

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01

Whether the defendant should be permitted to join his co-administrators and amend the defence and counterclaim

Holding

The application was allowed; the amendment only introduces the defendant's co-administrators and no prejudice would be occasioned to the plaintiffs.

Reasoning

The court applied the principles on amendment of pleadings from the Court of Appeal and Odgers on Pleadings. It examined the draft amended defence and counterclaim and found it only introduces the co-administrators. Since the suit property belongs to the estate of Stephen Thuo Kihoro, joinder of the co-administrators was appropriate, and any prejudice could be cured by recalling PW2 for further examination and by costs.

p. 3

Legal principles established

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  • As a general rule, however late an amendment is sought, it should be allowed if made in good faith and costs can compensate the other side, provided the amendment is material and does not change the action into one of a substantially different character.

Court orders

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  1. 1.Mary Njeri Thuo and Paul Kihoro Thuo joined as defendants to the suit to act jointly with the applicant Kariuki Thuo as administrators of the estate of Stephen Thuo Kihoro (deceased)
  2. 2.Leave granted to the Defendant to amend the defence and counterclaim in terms of the draft amended defence and counterclaim annexed to the supporting affidavit
  3. 3.Corresponding leave granted to the Plaintiff to file additional documents if need be
  4. 4.Costs of the application to be borne by the Defendants

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 1 Rules 9 & 10; Order 8 Rules 3, 5, 7 & 8; Order 51

Cases cited (3)

  • Elijah Kipngeno Arap Bii Vs. KCB Ltd
    (2013) eKLR
  • Joseph Ochieng & 2 others Vs. First National Bank of Chicago
    Civil Appeal No. 149 of 1991
  • Beatrice Gikunda Vs. CFC Life Assurance Ltd
    (2020) eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 1 Rules 9 & 10, Order 8 Rules 3, 5, 7 & 8 and Order 51 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, "Kiengo & 2 others v Thuo (Environment & Land Case 92 of 2017) [2024] KEELC 7036 (KLR)", Case Analysis (2024). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7036/eng@2024-10-24

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