[2015] KEELC 294 (KLR)
The court found that the application to amend the Originating Summons was not opposed and that the proposed amendment sought to clarify the applicant's claim to the suit property by way of adverse possession. The court exercised its discretion to allow the amendment, noting that such amendments are permissible to...
Source-derived case information.
- Citation
- [2015] KEELC 294 (KLR)
- Parties
- Plaintiff: Andrew Kiplangat Bii; Defendant: Charles Kipkurui Koech
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 19 of 2014
- Procedural Posture
- Civil Suit / Ruling on Application to Amend Originating Summons
- Outcome
- application to amend originating summons allowed
- Legal Topics
- Adverse Possession, Amendment of Pleadings, Originating Summons Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Kiplangat Bii
Plaintiff
Charles Kipkurui Koech
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Amend Originating Summons
Legal Issues
- 1 Whether the applicant should be granted leave to amend the Originating Summons to include a claim for adverse possession.
- 2 Whether the applicant has complied with procedural requirements for amending the Originating Summons.
Ratio Decidendi
The court found that the application to amend the Originating Summons was not opposed and that the proposed amendment sought to clarify the applicant's claim to the suit property by way of adverse possession. The court exercised its discretion to allow the amendment, noting that such amendments are permissible to ensure that the real issues in dispute are determined. However, the court pointed out procedural issues in the draft amended Originating Summons, specifically the need to cite the correct procedural rule (Order 37 Rule 7) and to ensure only one date appears on the document. The court allowed the amendment subject to these corrections and directed the applicant to file and serve...
Court Disposition
application to amend originating summons allowed
Orders
- The application to amend the Originating Summons is allowed.
- The Amended Originating Summons supported by an appropriate affidavit to be filed and served within 14 days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT KERICHO
CIVIL SUIT NO. 19 OF 2014
ANDREW KIPLANGAT BII…………………………………………...PLAINTIFF
VERSUS
CHARLES KIPKURUI KOECH..………………………………….. DEFENDANT
RULING
(Application to amend Originating Summons; application not opposed; application allowed)
This suit was commenced by way of an Originating Summons filed on 14th April 2014 taken out pursuant to the provisions of Order 37 Rules 3, 14, and 15 of the Civil Procedure Act. In the Originating Summons, it is averred that the applicant has acquired title to 0. 35 acres of the land parcel Kericho/Kiptere/3873 and should be registered as proprietor thereof.
Through an application dated 14th July 2015, the applicant wishes to amend the Originating Summons. I have perused the draft amended Originating Summons and I have seen that what the applicant wishes to do, is to add a question as to whether he is entitled to ownership of the 0. 35 acres of the suit property by way of adverse possession. The application is not opposed by the respondent.
On my part I have no problem with allowing the applicant to amend his pleadings. I only need to point out two issues that I have observed in the draft amended Originating Summons. First, there is no change in the title of the Originating Summons. If the applicant is relying on Order 37 Rule 7, which is what provides for the procedure for a claim for adverse possession, then he needs to amend his heading to also add Order 37 Rule 7. Secondly, the draft amended Originating Summons has two dates. It can only have one date, and the other, the date of amendment. The applicant needs to take care of these while amending the Originating Summons.
The application to amend is otherwise allowed and I direct the Amended Originating Summons supported by an appropriate affidavit to be filed and served within the next 14 days. The respondent is at liberty to file a Replying Affidavit to the Amended Originating Summons in the usual manner. The applicant will however shoulder the costs of this application.
It is so ordered.
Dated, Signed and delivered on this 24th day of July, 2015
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
PRESENT
Ms Chelangat Advocate instructed by M/s J.K. Kirui & Company Advocates for Applicant
Ms Chepkurui instructed by M/s Chepkurui Koech & Company Advocates for Respondent
Court Assistant; Mr. Kenei