[2018] KEELC 2597 (KLR)
The court found that although the law permits amendments to pleadings at any stage before judgment, the application in this case was made after the case had been fully heard by way of written submissions. The proposed amendment sought to introduce a new party and challenge a decree issued by another court, which...
Source-derived case information.
- Citation
- [2018] KEELC 2597 (KLR)
- Parties
- Plaintiff: Daniel Kimongony Kuto; Defendant: Charles Maina Njuguna; Defendant: District Lands Registrar (Uasin Gishu District); Defendant: Commissioner of Lands; Defendant: Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 955 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Plaint
- Outcome
- application dismissed with costs
- Judges
- A Ombwayo
- Legal Topics
- Amendment of Pleadings, Reopening of Case, Land Disputes Tribunal, Declaratory Suits, Res Judicata
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kimongony Kuto
Plaintiff
Charles Maina Njuguna
Defendant
District Lands Registrar (Uasin Gishu District)
Defendant
Commissioner of Lands
Defendant
Hon. Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be allowed to amend the plaint after the close of submissions.
- 2 Whether the intended amendment would prejudice the defendants.
- 3 Whether the amendment seeks to introduce matters already determined by other courts.
Ratio Decidendi
The court found that although the law permits amendments to pleadings at any stage before judgment, the application in this case was made after the case had been fully heard by way of written submissions. The proposed amendment sought to introduce a new party and challenge a decree issued by another court, which should have been addressed through judicial review or appeal, not by amendment of the plaint in the current suit. Allowing the amendment at this late stage would prejudice the defendants and introduce matters already determined by other courts. Therefore, the application lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to amend the plaint is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E & L CASE NO. 955 OF 2012
DANIEL KIMONGONY KUTO....................................................................PLAINTIFF
VERSUS
CHARLES MAINA NJUGUNA..........................................................1ST DEFENDANT
DISTRICT LANDS REGISTRAR(UASIN GISHU DISTRICT)...2ND DEFENDANT
COMMISSIONER OF LANDS..........................................................3RD DEFENDANT
HON. ATTORNEY GENERAL..........................................................4TH DEFENDANT
RULING
The application before court is dated 31. 10. 2017 and seeks orders that the case be re-opened and the plaintiff be allowed to amend the plaint as per the annexed amended plaint. The application is based on grounds that the amendment will assist the court to resolve the issues in controversy once and for all. The intended amendment will meet the orders of justice and fair play. No prejudice will be suffered by the defendants.
The application is opposed by the defendants on the grounds that the suit has been pending in court since the year, 2008. The application is filed on the day of highlighting submissions after the plaintiff realized that he has no case. The plaintiff seeks to introduce herein issues during submissions and he is guilty of laches.
I have considered the submissions of the plaintiff and the submissions of the 1st defendant and do find that though the law allows amendment to be made at any stage, before judgment is made, the application for amendment herein intends to bring in a new party at the stage of highlighting submissions.
In essence, this case has been fully heard by way of written submissions and therefore, any amendment of the plaint will prejudice the defendants. Moreover, what is sought to be introduced as an amendment is a prayer that a declaration that proceedings before the Land Disputes Tribunal were incompetent are incapable of enforcement and the setting aside of the decree in Eldoret Chief Magistrate’s Court Award No. 27 of 2003. This prayer seeks to challenge a decision of the court that has been reduced to a decree. The Award of Elders and judgment of court should have been challenged by way of either Judicial Review or an appeal to the Appeals Committee and not by way of a declaratory suit. The amendment intends to introduce matters that have been determined by other courts and therefore are likely to prejudice the respondents. The application lacks merit and is dismissed with costs.
Dated and delivered at Eldoret this 28th day of June, 2018.
A. OMBWAYO
JUDGE