[2018] KEELC 2975 (KLR)
The court found that the death of the 1st defendant necessitated the amendment of the plaint to enjoin the legal representative of the deceased's estate, Annah Kemunto Oginda, who had been issued with letters of administration. The court held that there was no reason to deny the plaintiff leave to amend the plaint,...
Source-derived case information.
- Citation
- [2018] KEELC 2975 (KLR)
- Parties
- Plaintiff: Caleb Isaboke Nyamwange; Defendant: James Oginda; Defendant: Abraham Birundu Nyangoto; Defendant: District Land Registrar Nakuru; Defendant: Annah Kemunto Oginda
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 247 of 2014
- Procedural Posture
- Notice of Motion / Ruling on Application to Enjoin Party and Amend Plaint
- Outcome
- application allowed
- Judges
- DO Ohungo
- Legal Topics
- Joinder of Parties, Amendment of Pleadings, Succession and Estates
- 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
Annah Kemunto Oginda
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Enjoin Party and Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint to enjoin Annah Kemunto Oginda as a defendant.
- 2 Whether the amendment is necessary due to the death of the 1st defendant and the issuance of letters of administration to the proposed 4th defendant.
Ratio Decidendi
The court found that the death of the 1st defendant necessitated the amendment of the plaint to enjoin the legal representative of the deceased's estate, Annah Kemunto Oginda, who had been issued with letters of administration. The court held that there was no reason to deny the plaintiff leave to amend the plaint, as the amendment was essential for the just determination of the issues in dispute, particularly since the proposed 4th defendant was in occupation of the suit land. The application was unopposed, and the court exercised its discretion to grant the orders sought, ensuring that all necessary parties would be before the court for the effective adjudication of the matter.
Court Disposition
application allowed
Orders
- Leave granted to the plaintiff to amend the plaint to join Annah Kemunto Oginda as 4th defendant.
- The amended plaint to be as per the draft annexed to the affidavit in support of the application.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
CASE No. 247 OF 2014
CALEB ISABOKE NYAMWANGE............................................................PLAINTIFF
VERSUS
JAMES OGINDA................................................................................1ST DEFENDANT
ABRAHAM BIRUNDU NYANGOTO.............................................2ND DEFENDANT
DISTRICT LAND REGISTRAR NAKURU...................................3RD DEFENDANT
RULING
1. This ruling is in respect of plaintiff’s Notice of Motion dated 23rd May 2016. The application seeks the following Orders:
1. Spent.
2. That this honourable court be pleased to grant leave to the plaintiff/applicant to enjoin Annah Kemunto Oginda as a party to this suit.
3. That costs of this application be provided for.
2. The application is supported by a supporting affidavit sworn by the plaintiff on 23rd May 2016 and a supplementary affidavit also sworn by the plaintiff. It is deposed in the affidavits that the 1st defendant passed away on 18th December 2015 and that the proposed 4th defendant was issued with letters of administration in respect of his estate on 26th May 2016. The plaintiff did not know the exact date of the 1st defendant’s death until 9th May 2017 when plaintiff’s advocates obtained a copy of the letters of administration from the court. It is further deposed in the affidavits that the proposed 4th defendant is currently occupying the suit land known as Nakuru/Molo/Kapsita/467.
3. I have considered the application, which is not opposed, as well as the affidavits. The application is brought under Order 8 rule 3 of the Civil Procedure Rules. It is essentially an application for leave to amend the plaint. The need for amendment is occasioned by the death of the 1st defendant. It also appears that the plaintiff has a claim against the proposed 4th defendant since he deposes in affidavit that the said proposed 4th defendant is occupying the suit land. I see no reason why the plaintiff should not be granted leave to amend the plaint.
4. In view of the foregoing, I make the following orders:
a) Leave is hereby granted to the plaintiff to amend the plaint herein so as to join Ann Kemunto Oginda to this suit as 4th defendant.
b) The amended plaint to be as per the draft annexed to the affidavit in support of the application.
c) The amended plaint to be filed within seven (7) days from the date of delivery of this ruling.
d) Costs of Notice of Motion dated 23rd May 2016 shall be in the cause.
5. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 17th day of May 2018.
D. O. OHUNGO
JUDGE
In the presence of:
Mr. Gatonye holding brief for Mr. Nyambegera for plaintiff/applicant
No appearance for defendants
Court Assistant: Gichaba