[2020] KEELC 3481 (KLR)
The court found that the grounds advanced by the applicant, particularly the explanation for the delay and the necessity of including the County Government of Turkana as a party, were plausible. The court exercised its discretion in favour of the applicant, noting that the mistake was attributable to counsel and not...
Source-derived case information.
- Citation
- [2020] KEELC 3481 (KLR)
- Parties
- Plaintiff: Africa Inland Church Kenya (Trustees Registered); Defendant: Naomi Enyang; Defendant: Amin Ali Mohamed
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 46 of 2013
- Procedural Posture
- Land Case / Ruling on Application to Set Aside Striking Out Order and Extension of Time
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Setting Aside Orders, Extension of Time, Joinder of Parties, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Africa Inland Church Kenya (Trustees Registered)
Plaintiff
Naomi Enyang
Defendant
Amin Ali Mohamed
Defendant
Procedural Posture
Land Case / Ruling on Application to Set Aside Striking Out Order and Extension of Time
Legal Issues
- 1 Whether the court should set aside its order striking out the amended plaint.
- 2 Whether the applicant should be granted leave to extend time and deem the amended plaint duly filed and served.
- 3 Whether the inclusion of the County Government of Turkana as a 3rd defendant is justified.
Ratio Decidendi
The court found that the grounds advanced by the applicant, particularly the explanation for the delay and the necessity of including the County Government of Turkana as a party, were plausible. The court exercised its discretion in favour of the applicant, noting that the mistake was attributable to counsel and not the party, and that no prejudice would be occasioned to the respondents. The interests of justice required that the matter be determined on its merits with all necessary parties joined. Consequently, the court set aside its previous order striking out the amended plaint, granted leave for extension of time, and deemed the amended plaint duly filed and served. The applicant was...
Court Disposition
application allowed
Orders
- The order of 30/7/2019 striking out the applicant/plaintiff’s amended plaint dated 25/7/2019 is set aside.
- Leave is granted for extension of time and the amended plaint dated 25/7/2019 is deemed duly filed and served.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 46 OF 2013
AFRICA INLAND CHURCH KENYA (TRUSTEES REGISTERED)....PLAINTIFF
VERSUS
NAOMI ENYANG................................................................................1ST DEFENDANT
AMIN ALI MOHAMED.....................................................................2ND DEFENDANT
RULING
1. The application dated 26/11/2019 and filed in court on 27/11/2019 has been brought by the plaintiff. It seeks the following orders:
(a) That this court be pleased to set aside its order of 30/7/2019 striking out the applicant/plaintiff’s amended plaint dated 25/7/2019.
(b) That this court upon setting aside the striking out order (a) above do grant leave for the extension of time and deem the amended plaint dated 25/7/2019 duly filed and served.
(c) Costs of this application be proved for.
2. The applicant has brought the application pursuant to Section 1A, 1B, 3 and 3A of the Civil Procedure Act, Article 159 of the Constitution, Order 50 Rule 6, of the Civil Procedure Rules 2010.
3. The grounds upon which the application is premised are that that this court granted the applicant’s notice of motion dated 27/3/2019 and gave the applicant 14 days to file and serve an amended plaint; that due to pressure of work counsel was only able to file the amended plaint on 30/7/2019 without seeking an order for validation; that for the court to arrive at a just decision it’s imperative to have the County Government of Turkana whose predecessor had been paid of Kshs.2,000,000/= as consideration for the land to be made a 3rd defendant; that the plaintiff is keen on prosecuting its suit and should not suffer due to the mistake of counsel; that this court has a wide discretion to grant this application as the same wont prejudice any of the parties herein and that justice of the case requires inclusion of Turkana County Government as a 3rd defendant.
4. The application is supported by an affidavit of the plaintiff’s counsel dated 26/11/2019.
5. The 2nd defendant filed replying affidavit on 13/12/2019. In that affidavit the deponent narrate the history of the matter in so far as the joinder to the County Government of Turkana is concern and level allegations of default on the part of the applicant and maintains that the applicant never showed any seriousness regarding compliance with the orders of joinder and amendment. He points out that it took the applicant’s four months after the striking out of the irregularly amended plaint to file the instant application and that that delay has not been satisfactorily explained. He expresses his apprehension that the application is meant to delay the hearing and determination of the main suit and it should be dismissed with costs.
6. The plaintiff filed its submissions on 3/2/2020. The 2nd defendant relied on his replying affidavit. I have considered the application and the response including the filed submissions.
7. I have read the supporting affidavit of Jeremiah Ongeri Samba annexed to the application and I find the grounds set out therein to be plausible. I therefore grant this application as prayed in prayers Nos. (a) and (b). The applicant shall bear the costs of the application.
Dated, signed and delivered at Kitale on this 27th day of February, 2020.
MWANGI NJOROGE
JUDGE
27/2/2020
Coram:
Before - Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Barongo for 2nd defendant
Ms. Temba holding brief for Samba for plaintiff
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
27/2/2020