[2019] KEELC 3526 (KLR)
The court found that the changes to the suit land, including amalgamation and government allocation, necessitated amendment of the plaint to reflect the current status of the property. The court held that the remedies sought did not substantially change and continued to relate to the original subject matter. The...
Source-derived case information.
- Citation
- [2019] KEELC 3526 (KLR)
- Parties
- Plaintiff: Ethics & Anti Corruption Commission; Defendant: Wilson Gacanja; Defendant: William Kipserem Busienei; Defendant: Industrial & Commercial Development Corporation
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 46 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Plaint
- Outcome
- application granted
- Judges
- FM Njoroge
- Legal Topics
- Amendment of Pleadings, Land Title Changes, Survey and Amalgamation, Government Allocation of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ethics & Anti Corruption Commission
Plaintiff
Wilson Gacanja
Defendant
William Kipserem Busienei
Defendant
Industrial & Commercial Development Corporation
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint in light of changes to the suit land.
- 2 Whether the proposed amendment introduces a new cause of action.
Ratio Decidendi
The court found that the changes to the suit land, including amalgamation and government allocation, necessitated amendment of the plaint to reflect the current status of the property. The court held that the remedies sought did not substantially change and continued to relate to the original subject matter. The prayer for a declaration in favour of the Kenya National Library Service was not new, as the institution was referenced in the original plaint. The court exercised its discretion to allow the amendment, finding the application merited and not prejudicial to the defendants.
Court Disposition
application granted
Orders
- Leave is granted to the plaintiff to amend the plaint as prayed.
- The amended plaint shall be filed and served upon all other parties within 14 days of this order.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC NO. 46 OF 2010
ETHICS & ANTI CORRUPTION
COMMISSION .........................................................................PLAINTIFF
VERSUS
WILSON GACANJA......................................................1ST DEFENDANT
WILLIAM KIPSEREM BUSIENEI............................2ND DEFENDANT
INDUSTRIAL & COMMERCIAL
DEVELOPMENT CORPORATION..........................3RD DEFENDANT
RULING
1. By an application dated 16/7/2018, the plaintiff seeks leave be granted to amend the plaint and costs of this application be in the cause. The application is brought under Section 3A of the Civil Procedure Act, Order 8 Rule 3(1) and Rule 5(1), Order 51 of the Civil Procedure Rules.
2. The Notice of Motion is founded on the grounds set out at the foot of the application and in the supporting affidavit of the plaintiff. The main ground is that a series of transactions were carried out by the Director of Surveys leading to the preparation of a survey scheme for the purpose of identifying and earmarking the land from which the suit properties had been hived off and that it led to the amalgamation of the suit lands with other lands. The further ground is that one of the suit properties had its title revoked in the year 2010 and following that revocation and the preparation of a new survey scheme and the creation of parcel numberKitale Municipality Block VI /300,the suit properties ceased to exist independently. Further the government allotted the said parcel number Kitale Municipality Block VI /300to the Kenya National Library service. In the light of the foregoing it is deponed that there is need to amend the plaint in order to harmonise the pleadings with the evidence to be given at the hearing.
3. The 2nd defendant filed grounds of opposition dated 12/10/2018 to the application was filed on 16/7/2018 and states that there is no justification for the proposal to amend the plaint and that the intent of the applicant is to introduce an entirely new cause of action.
4. The plaintiff filed submissions on 11/10/2018. He relies on the case of Nairobi HC Petition No. 71 of 2013 Institute for Social Accountability & Another -vs- Parliament of Kenya & 3 Others [2014] eKLRin relation to amendment of pleadings.
5. It is trite that amendments of pleadings may be allowed at any time before judgment.
6. I find that the changes to the suit land require that amendments be made to the plaint. I also find that the remedies do not substantially change since they still relate to the land subject matter of the suit.
7. Further even if there is a prayer for a declaration that the land vests in the Kenya National Library Service, I do note that that is an institution under the National Government for which the suit land was initially alleged to have been set aside. That allegation was contained in the original un amended plaint and it is not new and so the prayer is not strange or misplaced.
8. In my view the application is merited and I hereby grant it in terms of prayer number 1and2 thereof. The amended plaint shall be filed and served upon all the other parties within 14days of this order.
Dated, signedanddeliveredatKitale on this 29th day of April, 2019.
MWANGI NJOROGE
JUDGE
29/4/2019
Coram:
Before - Hon. Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Mokua for plaintiff
N/A for the defendants
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
29/4/2019