[2019] KEELC 1365 (KLR)
The court found that the issues in dispute involve multiple transactions and subdivisions of the suit land, and that the inclusion of Rebecca Okokia Lemein as a defendant is necessary for the just and complete determination of the matter. The court exercised its discretion to allow the amendment of the plaint and...
Source-derived case information.
- Citation
- [2019] KEELC 1365 (KLR)
- Parties
- Applicant: Daniel Sudoi Kurao; Applicant: Wilson Kisompe Tikani; Respondent: Pamela Atieno Oluoch; Respondent: Sylvester Maroko Sijeny; Respondent: District Land Registrar
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 36 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Plaint and Enjoin Party
- Outcome
- application allowed
- Judges
- MN Kullow
- Legal Topics
- Amendment of Pleadings, Joinder of Parties, Land Fraud, Subdivision of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Sudoi Kurao
Applicant
Wilson Kisompe Tikani
Applicant
Pamela Atieno Oluoch
Respondent
Sylvester Maroko Sijeny
Respondent
District Land Registrar
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Amend Plaint and Enjoin Party
Legal Issues
- 1 Whether the court should grant leave to amend the plaint to include new facts and parties.
- 2 Whether the joinder of Rebecca Okokia Lemein as a defendant is necessary for the just determination of the dispute.
- 3 Whether the proposed amendment will prejudice the respondents.
Ratio Decidendi
The court found that the issues in dispute involve multiple transactions and subdivisions of the suit land, and that the inclusion of Rebecca Okokia Lemein as a defendant is necessary for the just and complete determination of the matter. The court exercised its discretion to allow the amendment of the plaint and the joinder of the new party, holding that this would serve the interests of justice and would not prejudice the respondents. The court further directed that the amended plaint be filed and served, and that all parties comply with the relevant procedural requirements within specified timelines.
Court Disposition
application allowed
Orders
- The Notice of Motion dated 12th July, 2017 is allowed and Rebecca Okokia Lemein is enjoined as the 4th Defendant.
- The draft amended plaint is deemed as filed subject to payment of requisite fees.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
ELC CAUSE NO. 36 OF 2017
FORMERLY NAKURU ELC NO. 270 OF 2013
DANIEL SUDOI KURAO........................................1ST PLAINTIFF/APPLICANT
WILSON KISOMPE TIKANI................................2ND PLAINTIFF/APPLICANT
-VERSUS-
PAMELA ATIENO OLUOCH..........................1ST DEFENDANT/RESPONDENT
SYLVESTER MAROKO SIJENY...................2ND DEFENDANT/RESPONDENT
DISTRICT LAND REGISTRAR.....................3RD DEFENDANT/RESPONDENT
RULING
By a Notice of Motion dated 12th July, 2017 and brought under Order 51 Rule 1, Order 1 Rule 3 and Order 2 Rule 5 the Applicant sought for orders to amend the plaint filed in court on 28th March, 2013. The Application is based on the grounds that there was fraud in the manner in which the suit land was acquired and further that during the pendency of the suit the same has been sub-divided and sold to third parties and that the said sub-division was occasioned by one Rebecca Okokia Lemein and hence it will necessitate the amendment of the plaint. The Applicants contend the amendment sought will not prejudice the Respondents.
The Application was further supported by the Affidavit of the 1st Plaintiff/Applicant in which he deponed that the aforesaid Rebecca Okokia Lemein purports to be the original owner of the suit parcel of land. The Application was opposed by the Respondents by way of a Replying Affidavit sworn by the 1st Defendant/Respondent. She denies that the suit land was sub-divided as alleged by the Applicant and further that by the time they purchased the land Rebecca Okokia Lemein had not transferred the land to herself.
I have read the Application before me and the submissions by the counsel for the parties. The Application before court is one which the Applicants seek the court’s discretionary powers to allow for the amendment of his plaint the grounds upon which an Application of this nature is now settled.
I have looked at the Application and the proposed Amended Plaint and the Respondents Replying Affidavit and I find that the suit before court involves numerous transactions in respect of land parcels Cis Mara/Oleleshwa/4187and 4188 and later sub-divided into various parcels that is Cis Mara/Oleleshwa/5308 and 5309 and it is my view that for the court to be able to adequately determine the issue between the parties it shall be prudent and shall serve the interest of justice to have the instant Application heard and in the circumstances, I will allow the Notice of Motion dated 12th July, 2017 in the following terms:-
1. That the Notice of Motion dated 12th July, 2017 is allowed and Rebecca Okokia Lemein be enjoined as the 4th Defendant.
2. That draft amended plaint be deemed as filed subject to the payment of the requisite fees.
3. That the Amended Plaint be served on the Defendants within 14 days and leave is granted to the Defendants to file their Amended Defence within 14 days thereafter.
4. That all parties do comply with the provisions of order 11 within 30 days of filing of the Defence and reply to Defence if any.
5. Each party to bear its cost.
DATED, SIGNED and DELIVERED in open court at NAROK on this 8th day of October, 2019
Mohammed Kullow
Judge
8/10/19
In the presence of: -
CA:Chuma/Kimiriny
Mr Simiyu for the Plaintiff
Ms Mogere for the 1st and 2nd defendant
N/A for the 3rd defendant
N/A for the Applicant
Mohamed Kullow
Judge
8/10/19