[2015] KEELC 338 (KLR)
The court held that there was no exceptional circumstance or prejudice to the plaintiff that would justify denying the defendant's application to amend his defence and counterclaim. The court emphasized the liberal approach to amendments, allowing parties to present their cases fully. The defendant was therefore...
Source-derived case information.
- Citation
- [2015] KEELC 338 (KLR)
- Parties
- Plaintiff: Caleb Isaboke Nyamwange; Defendant: James Oginda; Defendant: Abraham Birundu Nyangoto; Defendant: District Land Registrar Nakuru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 247 of 2014
- Procedural Posture
- Amendment Application / Ruling on Application to Amend Defence and Counterclaim
- Outcome
- application allowed
- Judges
- MA Silau
- Legal Topics
- Amendment of Pleadings, Joinder of Parties, Ownership Disputes, Fraudulent Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Caleb Isaboke Nyamwange
Plaintiff
James Oginda
Defendant
Abraham Birundu Nyangoto
Defendant
District Land Registrar Nakuru
Defendant
Procedural Posture
Amendment Application / Ruling on Application to Amend Defence and Counterclaim
Legal Issues
- 1 Whether the defendant should be granted leave to amend his defence and counterclaim to enjoin additional parties and plead new facts.
- 2 Whether allowing the amendment would prejudice the plaintiff.
Ratio Decidendi
The court held that there was no exceptional circumstance or prejudice to the plaintiff that would justify denying the defendant's application to amend his defence and counterclaim. The court emphasized the liberal approach to amendments, allowing parties to present their cases fully. The defendant was therefore granted leave to file the amended defence and counterclaim, enjoining Abraham Birundu and the District Land Registrar Nakuru as defendants to the counterclaim and adding new factual allegations regarding fraudulent title registration and a claim for refund. The only condition imposed was that the defendant would bear the costs of the application, as he had the opportunity to plead...
Court Disposition
application allowed
Orders
- The defendant is granted leave to file and serve the amended defence and counterclaim within 14 days.
- The defendant shall bear the costs of the application.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO 247 OF 2014
CALEB ISABOKE NYAMWANGE ……...............................…………..PLAINTIFF
VERSUS
JAMES OGINDA…..…............................……………………………..DEFENDANT
RULING
(Application to amend defence and counterclaim; no reason to deny the application; application allowed)
1. The plaintiff's case in this suit is that he is the registered proprietor of the land parcel Nakuru/Molo/Kapsita/467 measuring 2. 02 hectares. He purchased the said land on 28th March 2013 and acquired title on 24th April 2013. The seller was Abraham Birundu Nyangoto and they had an agreement dated 28th March 2013, for the sale of the land for Kshs. 2,000,000/=. He has averred that despite being the owner the defendant has moved into the land. In his plaint, he has asked for orders that he be declared the owner of the suit property and for an eviction order.
2. The defendant filed defence and counterclaim. He believes that he is the lawful owner of the suit property, having purchased it from one Lilian Mbuu on 4th December 2009. He took occupation and started dwelling in it. While he was in occupation, a person by name of Abraham Birundu Nyangoto came to the land and also claimed to have purchased it from the original owner. He entered into an agreement with Mr. Birundu on a settlement. In the agreement, dated 30th April 2013, Mr. Birundu sold the land to the defendant for a sum of Kshs. 1,000,000/=. He has averred that the plaintiff knew very well that the defendant had purchased the land and has no right to it.
3. The defendant has now applied to amend his defence and counterclaim. He wants to enjoin Abraham Birundu as a defendant to his counterclaim alongside the District Land Registrar Nakuru. I have seen the draft amended defence and counterclaim. He wishes to add that the Land registry fraudulently issued two title deeds for the same land and that Mr. Birundu misrepresented himself to be the true owner. He also intends to add the pleading that if he cannot get the land, then he deserves the refund of the sum of Kshs. 680,000/= from Mr. Birundu, which money he avers he paid Mr. Birundu.
4. Courts are usually liberal when it comes to allowing a party leave to amend. Unless there are exceptional circumstances, there would be no reason to deny a party to present his case in the manner that he wishes. I do not see any prejudice that may be suffered by the plaintiff if I allow this application. I therefore allow it. I direct the defendant to formally file the amended defence and counterclaim within 14 days from the date hereof and proceed to serve it in the usual manner. The defendant will however shoulder the costs of the application as he had room to plead his case properly in the first instance.
It is so ordered.
Dated, signed and delivered in open court at Nakuru this 18th day of June 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU
In presence of :-
Mr Wambeyi holding brief for Mr Gekonga for defendant/applicant.
N/A for M/s Nyambegera for plaintiff/respondent
Janet : CA
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU