[2017] KEELC 2167 (KLR)
The court found that the applicant demonstrated a strong interest in enjoining the new party, Adams Khamis Jarden, as the alleged actions of this party—demolition and occupation—are central to the applicant's counterclaim. The court held that without joining the new party, the applicant's interests could not be...
Source-derived case information.
- Citation
- [2017] KEELC 2167 (KLR)
- Parties
- Applicant: Dixon Odaba; Respondent: Evaline Auma Ochunga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 92 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Amend Defence and Enjoin Interested Party
- Outcome
- Application allowed; costs awarded to the respondent.
- Judges
- A Kaniaru
- Legal Topics
- Joinder of Parties, Amendment of Pleadings, Counterclaim, Illegal Occupation of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dixon Odaba
Applicant
Evaline Auma Ochunga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Amend Defence and Enjoin Interested Party
Legal Issues
- 1 Whether the defendant should be granted leave to amend his defence to include a counterclaim and enjoin a new party as interested party.
- 2 Whether the proposed interested party has a sufficient interest to be joined in the suit.
- 3 Whether the respondent would suffer prejudice if the application is allowed.
Ratio Decidendi
The court found that the applicant demonstrated a strong interest in enjoining the new party, Adams Khamis Jarden, as the alleged actions of this party—demolition and occupation—are central to the applicant's counterclaim. The court held that without joining the new party, the applicant's interests could not be effectively adjudicated. The respondent's own submissions acknowledged the purchaser's interest of the intended party, further justifying the joinder. The court emphasized that procedural shortcomings should not override substantive justice and that any prejudice to the respondent could be compensated by costs. Accordingly, the application to amend the defence and enjoin the...
Court Disposition
Application allowed; costs awarded to the respondent.
Orders
- Leave granted to the defendant/applicant to amend his defence.
- Adams Khamis Jarden to be enjoined in the suit as an interested party.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA IN BUSIA
LAND & ENVIRONMENTAL DIVISION
ELC NO. 92 OF 2013
DIXON ODABA …………………..….….….. APPLICANT/DEFENDANT
VERSUS
EVALINE AUMA OCHUNGA …………… RESPONDENT/PLAINTIFF
R U L I N G
1. The application before me is dated 29/3/2017 and was filed on 30/3/2017. The Applicant – DIXON ODABA – is the Defendant in the suit herein filed by the Respondent – EVALINE AUMA OCHUNGA – on 1/11/2013. Evaline is the Plaintiff in the suit. In the suit, the Plaintiff is contesting an alleged illegal entry and occupation of her land by the Defendant. The Defendant filed a defence on 21/7/2016 denying the Plaintiff’s claim. It is that defence that he wants to amend. He wants to add a new party – ADAMS KHAMIS JARDEN – and also include a counterclaim. That is clear from the filed amended defence.
2. The prayers sought in the application are as follows:
Prayer 1: That the Defendant/Applicant be granted leave to amend his defence.
Prayer 2: That one ADAMS KHAMIS JARDEN be enjoined in this suit as an Interested Party.
Prayer 3: That costs be in the cause.
3. According to the Applicant, he has come across new facts and the Respondent stands to suffer no prejudice. The party intended to be enjoined is said to have demolished the Applicant’s house, fence and destroyed other developments and due to the damage suffered, the Applicant wants to file a counterclaim.
4. The Respondent filed a replying affidavit on 24/4/2017. She gave a background to this case. To her, the application is brought in bad faith and is a waste of Court’s time. The Applicant was said to have no real interest in defending the suit. But the Respondent added that should the Court be minded to allow the application, she is not opposed to enjoining the intended party. And this is because the intended party is the one who has purchaser’s interest in the land.
5. The application was canvassed by way of written submissions. The Applicant’s submissions were filed on 22/5/2017. The Respondent’s submissions were also filed on the same date. I have considered the rival submissions. I do not want to delve much into what each side said. I need to observe that rigidity of procedure cannot be allowed to stand in the way of substantive justice. The Applicant has explained why he wants to bring a new party on board. The new party is supposed to be enjoined as Interested Party. And the proposed joinder comes about because the new party has allegedly gone to the Applicant’s land and occupied it. He is said to have destroyed a structure, a fence, and some other developments. This allegation is the crucial consideration that the Court should have in mind in deciding the application. The Respondent’s submissions do not seem to focus on this consideration.
6. To the Court, the Applicant has shown he has a strong interest in enjoining the new party. It seems clear that without the new party the Applicant’s alleged interest in the case cannot be effectively adjudicated. He has shown too that he has a possible right to pursue against the new party.
7. It is also in the interest of the new party to be enjoined in the suit. As things stand now, the suit is between the Applicant and the Respondent. But it is clear from the Respondent herself that the proposed party has a purchaser’s interest in what the Applicant is claiming to be his own. The proposed Interested Party then has an obvious right to be allowed to defend his interest. And this can only happen if he is brought on board. All this points to the need to allow the application.
8. Whatever shortcomings the application may have, and whatever shortcomings of procedure, substantive justice should be the overriding objective. The Respondent can be compensated by way of costs and that would be enough.
9. I therefore allow the application herein but I award costs to the Respondent.
Dated, signed and delivered at Busia this 26th day of July, 2017.
A. K. KANIARU
JUDGE
In the Presence of:
Applicant/Defendant: ………………………………..……………………
Respondent/Applicant………..……………………………………………
Counsel: …………………………………………………………………….