[2019] KEELC 1964 (KLR)
The court found that the application for leave to amend the plaint was merited as the suit had not commenced and the defendants would not suffer any prejudice that could not be compensated by costs. The court emphasized the liberal approach to amendments, especially before trial, and noted that the defendants would...
Source-derived case information.
- Citation
- [2019] KEELC 1964 (KLR)
- Parties
- Plaintiff: Dickson K. Yatich; Plaintiff: Richard C. Chelimo; Plaintiff: Johnnah Kiplagat; Plaintiff: John C. Rono; Plaintiff: Cherono Rotich (representing 220 members of Kipngochor Co. Ltd); Defendant: Obadiah K. Kipkorir; Defendant: John Mark Moi; Defendant: Japheth K. Chepkeres; Defendant: Weldon Labati; Defendant: Land Registrar; Defendant: Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 305 of 2012
- Procedural Posture
- Civil Application / Ruling on Application for Leave to Amend Plaint
- Outcome
- application allowed
- Legal Topics
- Amendment of Pleadings, Fraudulent Land Transactions, Mesne Profits, Damages for Destruction of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dickson K. Yatich
Plaintiff
Richard C. Chelimo
Plaintiff
Johnnah Kiplagat
Plaintiff
John C. Rono
Plaintiff
Cherono Rotich (representing 220 members of Kipngochor Co. Ltd)
Plaintiff
Obadiah K. Kipkorir
Defendant
John Mark Moi
Defendant
Japheth K. Chepkeres
Defendant
Weldon Labati
Defendant
Land Registrar
Defendant
Attorney General
Defendant
Procedural Posture
Civil Application / Ruling on Application for Leave to Amend Plaint
Legal Issues
- 1 Whether the plaintiffs should be granted leave to amend the plaint before commencement of trial.
- 2 Whether the proposed amendments would prejudice the defendants in a manner not compensable by costs.
Ratio Decidendi
The court found that the application for leave to amend the plaint was merited as the suit had not commenced and the defendants would not suffer any prejudice that could not be compensated by costs. The court emphasized the liberal approach to amendments, especially before trial, and noted that the defendants would have the opportunity to amend their defences and respond to the new pleadings. The court therefore allowed the application, directed the amended plaint to be filed and served within 14 days, and granted the defendants corresponding leave to amend their defences. Costs of the application were awarded to the defendants as the plaintiffs had the opportunity to plead their case...
Court Disposition
application allowed
Orders
- Leave granted to the plaintiffs to amend the plaint as per the draft annexed to the application.
- The amended plaint to be filed and served within 14 days.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 305 OF 2012
DICKSON K. YATICH......................................1ST PLAINTIFF
RICHARD C. CHELIMO.................................2ND PLAINTIFF
JOHNNAH KIPLAGAT....................................3RD PLAINTIFF
JOHN C. RONO................................................4TH PLAINTIFF
CHERONO ROTICH(representing 220 members of
KIPNGOCHOCH CO.LTD)............................5TH PLAINTIFF
VERSUS
OBADIAH K. KIPKORIR.............................1ST DEFENDANT
JOHN MARK MOI........................................2ND DEFENDANT
JAPHETH K. CHEPKERES.........................3RD DEFENDANT
WELDON LABATI........................................4TH DEFENDANT
LAND REGISTRAR......................................5TH DEFENDANT
ATTORNEY GENERAL................................6TH DEFENDANT
RULING
(Application for leave to amend plaint; suit yet to commence; no prejudice which will be caused to the defendants; application allowed)
1. The application before me is that dated 14 December 2018 filed by the plaintiffs. The application is brought pursuant to the provisions of Order 8 Rule 3 of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act, Cap 21, Laws of Kenya. The principal order sought in the application is for leave to amend the plaint.
2. To put matters into context, this suit was commenced through a plaint which was filed on 8 June 2012. There are 5 plaintiffs and they aver that they have brought this suit on behalf of 220 members of Kipngochor Company Limited. It is pleaded in the plaint that 1st, 2nd, and 4th defendants were at some point the officials and trustees of the company and that they fraudulently sold the land parcels Solai/Ndungiri Block 1/232 and 235 to the 2nd defendant without the knowledge of the members. They thus sought to have the title of the 2nd defendant cancelled. The 1st and 4th defendants filed a joint statement of defence. It is admitted that the 1st and 4th defendants were officials of the company whereas the 3rd defendant was its manager. It is however denied that the sale of the suit lands to the 2nd defendant was fraudulent.
3. To this application, the applicants have annexed a draft amended plaint. First, it is proposed to remove the 6 individual plaintiffs and have Kipngochoch Farm Company Limited as the plaintiff. The other substantive amendments are to plead particulars of fraud and particulars of breach of duty. In addition, there is intent to amend the prayers in the plaint, to make them more elaborate and to add prayers for mesne profits and damages of Kshs. 2,000,000/= said to be costs of a building that was built on the land and which the 2nd defendant is alleged to have destroyed.
4. The application is not opposed. On my part, I do not see any reason why I should decline the order to amend. Courts are generally fairly liberal when it comes to allowing a party to amend his/her pleadings, the general principle being that amendments to pleadings should be allowed unless there will be prejudice to the other party which cannot be compensated by an award of costs. (See the case of Eastern Bakery vs Castellino (1958) EA 461).
5. I do not see any prejudice which the defendants stand to suffer for the case has not yet begun and they will have opportunity to amend their defences and also counter the new pleadings through evidence.
6. From the foregoing, I allow the application and direct that the amended plaint be filed and served within 14 days. Upon service, the defendants have 14 days to amend their respective defences.
7. On costs, the applicants had an opportunity to plead their case well in the first instance and therefore the defendants will have the costs of this application.
8. Orders accordingly.
Dated, signed and delivered in open court at Nakuru this 10th day of July 2019.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU
In presence of : -
Mr. Mutembei for the applicants.
No appearance for the respondents.
Court Assistants: Nelima Janepher /Patrick Kemboi
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU