[2016] KEELC 898 (KLR)
The court found that the amendment sought by the Plaintiff was limited to substituting the suit land parcel number from Kisumu/Kogony/1266 to Kisumu/Kogony/5641, which was necessary due to the subdivision and closure of the original parcel. The amendment would not prejudice the Defendant, who would have the...
Source-derived case information.
- Citation
- [2016] KEELC 898 (KLR)
- Parties
- Plaintiff: Anne Omollo; Defendant: Owala Olago
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 50 of 2011
- Procedural Posture
- Notice of Motion / Ruling on Application to Amend Plaint
- Outcome
- Application to amend plaint allowed with costs to the Defendant; leave to appeal granted.
- Legal Topics
- Amendment of Pleadings, Land Parcel Identification, Costs of Application
- 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
Anne Omollo
Plaintiff
Owala Olago
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the Plaintiff should be granted leave to amend the plaint to substitute the suit land parcel number.
- 2 Whether the amendment would prejudice the Defendant.
- 3 Who should bear the costs of the application.
Ratio Decidendi
The court found that the amendment sought by the Plaintiff was limited to substituting the suit land parcel number from Kisumu/Kogony/1266 to Kisumu/Kogony/5641, which was necessary due to the subdivision and closure of the original parcel. The amendment would not prejudice the Defendant, who would have the opportunity to amend his defence if needed, and would not preclude him from raising jurisdictional issues. The Plaintiff, having caused the need for amendment by subdividing the land during the pendency of the suit, was ordered to bear the costs of the application. The application to amend the plaint was therefore allowed, with the amended plaint to be filed and served within fifteen...
Court Disposition
Application to amend plaint allowed with costs to the Defendant; leave to appeal granted.
Orders
- The Plaintiff is granted leave to amend the plaint as per the application dated 18th March 2014.
- The amended plaint must be filed and served within fifteen (15) days.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT KISUMU
HCC NO. 50 OF 2011
ANNE OMOLLO......................................................................PLAINTIFF
VERSUS
OWALA OLAGO.................................................................DEFENDANT
RULING
1. Anne Omollo, the Plaintiff, filed the notice of motion dated 18th March 2014 seeking for leave to amend her plaint as per the attached copy, specifying the suit land as parcel Kisumu/Kogony/5641 which is a subdivision of parcel Kisumu/Kogony 1266. The application is supported by the affidavit sworn by Anne Omollo on 18th March 2014 and the six grounds on its face.
2. The application is opposed by Owala Olago, the Defendant, through his replying affidavit sworn on 11th July 2014.
3. The counsel for the Plaintiff filed their written submissions dated 24th November 2014, while the Defendant's counsel filed theirs dated 4th March 2016.
4. The issue for determination is whether the amendment sought should be granted and on what terms.
5. The court has carefully considered the grounds on the notice of motion, the affidavit evidence by both parties, submissions by both counsel and concluded as follows:
a) That the amendment sought is limited to substituting parcel Kisumu/Kogony/1266 with Kisumu/Kogony 5641. All the other particulars are remaining more or less the same. The explanation given for the need of this substitution is understandable as land parcel Kisumu/Kogony/1266 no longer legally exists following the closure of its register upon being subdivided into three parcels, namely Kisumu/Kogony/5639 to 5641.
b) That the amendment will not be prejudicial to the Defendant as he will get the opportunity to amend his statement of defence if need be. The amendment will not in any way stop or preclude the Defendant from raising any issue touching on the court's jurisdiction as he seems to intimate through the written submissions.
c) That allowing the amendment will allow the parties to zero in on the specific parcel of land Kisumu/Kogony/5641 leaving outparcelsKisumu/Kogony 5639 and 5640 which are not in issue.
d) That as the need to amend the plaint has been occasioned by the Plaintiff who is also the one who causedKisumu/Kogony/1266 to cease to exist through subdivision into parcels 5639 to 5641 while the suit was pending in court, the Plaintiff will meet the costs of the application.
6. That in view of the foregoing, the court allows the application dated 18th March 2014 in terms of prayer (a) with costs to the Defendant in any event. The amended plaint be filed and served within the next 15 (fifteen) days.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
DATED AND DELIVERED THIS 12TH DAY OF MAY 2016
In presence of;
Plaintiff Absent
defendant Absent
Counsel Mr Baganda for Stausi for Plaintiff
Mr Aboge for the Defendant
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
12/5/2016
12/5/2016
S.M. Kibunja J
Parties absent
Mr Baganda for Stausi for Plaintiff
Mr aboge for Defendant/Respondent
Court: Ruling delivered in open court in presence of Mr Baganda for Stausi for Plaintiff/Applicant and Mr Aboge for Defendant/Respondent.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
12/5/2016
Mr Aboge; I apply for satisfied copies of the proceedings and ruling and leave to appeal.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
12/5/2016
Mr Baganda: No objection.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
12/5/2016
Court: Leave to appeal granted. The Deputy Registrar to supply the counsel with copies of proceedings and ruling upon usual payments.
S.M. KIBUNJA
ENVIRONMENT & LAND – JUDGE
12/5/2016