[2021] KEELC 4556 (KLR)
The court found that the application for leave to amend the defence and counterclaim was unopposed and that the proposed amendments were merited. The court held that amendments to pleadings should generally be allowed to enable the real issues in controversy to be determined, provided there is no prejudice to the...
Source-derived case information.
- Citation
- [2021] KEELC 4556 (KLR)
- Parties
- Plaintiff: Estate of John Mwenesi Adulu (represented by Ebby Musimbi Mwenesi); Defendant: Saul Egunza Bunyali; Defendant: Ebrahim Omwenyi Ambwere; Defendant: Harry City Ambwere; Defendant: West Kenya Sugar Company; Defendant: Passels Simiyu Wanyama
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 21 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Amend Defence and Counterclaim
- Outcome
- Application granted as prayed.
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Counterclaim, Proprietorship of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Estate of John Mwenesi Adulu (represented by Ebby Musimbi Mwenesi)
Plaintiff
Saul Egunza Bunyali
Defendant
Ebrahim Omwenyi Ambwere
Defendant
Harry City Ambwere
Defendant
West Kenya Sugar Company
Defendant
Passels Simiyu Wanyama
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Amend Defence and Counterclaim
Legal Issues
- 1 Whether the 4th defendant should be granted leave to amend its defence and counterclaim.
- 2 Whether the proposed amendments are merited and in accordance with the law.
Ratio Decidendi
The court found that the application for leave to amend the defence and counterclaim was unopposed and that the proposed amendments were merited. The court held that amendments to pleadings should generally be allowed to enable the real issues in controversy to be determined, provided there is no prejudice to the other parties. The court was satisfied that the amendments sought by the 4th defendant were necessary for the just determination of the dispute, and there was no evidence of prejudice to the other parties since the application was not opposed. Accordingly, the court exercised its discretion to grant the orders sought, allowing the 4th defendant to file and serve its amended...
Court Disposition
Application granted as prayed.
Orders
- Leave granted to the 4th defendant to amend its defence and counterclaim.
- The 4th defendant shall file and serve the amended defence and counterclaim within 14 days.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
ELC NO. 21 OF 2011
ESTATE OF JOHN MWENESI ADULU..............................................PLAINTIFF
(REPRESENTED BY EBBY MUSIMBI MWENESI)
VERSUS
SAUL EGUNZA BUNYALI.........................................................1ST DEFENDANT
EBRAHIM OMWENYI AMBWERE........................................2ND DEFENDANT
HARRY CITY AMBWERE........................................................3RD DEFENDANT
WEST KENYA SUGAR COMPANY.........................................4TH DEFENDANT
PASSELS SIMIYU WANYAMA................................................5TH DEFENDANT
RULING
1. The application dated 14/10/2020and filed in court on 26/11/2020 has been bought under Section 1A, 1B, 3 & 3Bof the Civil Procedure ActandOrder 8 Rules 3, 5and7, Order 51 Rule 1of theCivil Procedure Rules, Article 159of theConstitution of Kenya 2010. The 4th defendant/applicant seeks the following orders:-
(1) …spent
(2) That the honourable court be pleased to grant leave to the 4th defendant/applicant to amend its defence and counterclaim.
(3) That if prayer 1 is allowed, the applicant be granted leave to file the proposed re-amended defence and counterclaim within seven (7) days thereof.
(4) That costs of this application be provided.
2. The application is supported by the affidavit sworn on 4/11/2020of Duncan Obwawo the Human Recourse and Administrative Manager of the 4th defendant. The grounds upon which the application is made are that the 4th defendant conducted due diligence prior to purchase of the suit land and ascertained that the 2nd and 3rd defendants had a good title capable of being passed on to the 4th defendant and that it was therefore transferred to the 4th defendant who sold it to the 5th defendant. Consequently the 4th defendant desires to amend its defence to include those matters and also a counterclaim against persons or offices that made certain actions omissions and or performed actions that led to its registration as proprietor as they should in its opinion be parties in the suit.
3. The instant application is not opposed and this court upon perusing the proposed amendments finds that they are merited.
4. The application dated 14/10/2020is therefore granted as prayed in terms of Prayers Nos. (2)and(3) thereof. The applicant shall file its amended defence and amended counterclaim and serve it upon all parties in this suit within 14 days. Any responses thereto by any party shall be filed and served within 14 days of the last date on which service of the amended defence and amended counterclaim is due. This suit shall be mentioned on 10/3/2021 for fixing a hearing date. The costs of the application shall be in the cause.
It is so ordered.
Dated, signed and delivered at Kitale via electronic mail on this 26th day of January, 2021.
MWANGI NJOROGE
JUDGE, ELC, KITALE