[2020] KEELC 645 (KLR)
The court found that the parties had reached a consent regarding the application to amend the defence, and that the amendment sought was minor, involving only a correction of a typographical error. There was no objection from the plaintiff, and the consent provided for timelines for the filing of the amended defence...
Source-derived case information.
- Citation
- [2020] KEELC 645 (KLR)
- Parties
- Plaintiff: Fridah Kanja Muthaura (Suing as the personal representative of the Estate of Munene Mugo Ncacu (Deceased)); Defendant: Elias Micheni Mugo; Defendant: Bernard Muriithi Mugo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 10 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Defence
- Outcome
- Application allowed by consent; orders issued as per consent.
- Legal Topics
- Amendment of Pleadings, Procedural Fairness, Land Dispute, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fridah Kanja Muthaura (Suing as the personal representative of the Estate of Munene Mugo Ncacu (Deceased))
Plaintiff
Elias Micheni Mugo
Defendant
Bernard Muriithi Mugo
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Amend Defence
Legal Issues
- 1 Whether the defendants should be granted leave to amend their statement of defence out of time.
- 2 Whether the amendment would prejudice the plaintiff.
- 3 Whether the consent of the parties should be adopted as an order of the court.
Ratio Decidendi
The court found that the parties had reached a consent regarding the application to amend the defence, and that the amendment sought was minor, involving only a correction of a typographical error. There was no objection from the plaintiff, and the consent provided for timelines for the filing of the amended defence and reply. The court held that there would be no prejudice to the plaintiff and that it was just and fair to allow the amendment. The consent was therefore adopted as an order of the court, allowing the defendants to amend their defence and setting timelines for the subsequent pleadings.
Court Disposition
Application allowed by consent; orders issued as per consent.
Orders
- The Defendants’ Application dated 23rd October, 2020 is allowed with no orders as to costs.
- The Defendants to file and serve the Amended Defence within 7 days.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 10 OF 2020
FRIDAH KANJA MUTHAURA (Suing as the personal representative of the Estate of
MUNENE MUGO NCACU (DECEASED)..............................................................PLAINTIFF
VERSUS
ELIAS MICHENI MUGO...............................................................................1ST DEFENDANT
BERNARD MURIITHI MUGO.....................................................................2ND DEFENDANT
RULING
1. The application is dated 23rd October, 2012 and the applicant states that they have brought it to court under Order 8 Rules 3(1), (2), (3), 5(1) and 7(1)(2) and (3) of the Civil Procedure Rules 2010. It seeks the following orders:
1. THAT the defendants/applicants be granted leave to amend their 1st and 2nd defendants’ statement of defence out of time in terms of the annexed draft amended 1st and 2nd defendants’ statement of defence.
2. THAT upon granting prayer No. 1 hereinabove, the plaintiff/respondent be at liberty to file an amended plaint and/or file a reply to the amended 1st and 2nd defendants’ statement of defence.
3. THAT costs of this application be in the cause.
2. The application is supported by the affidavit of Elias Micheni Mugo, the 1st defendant and has the following grounds;
1. The defendants/applicants filed their defence in this case on 15/10/2020.
2. It has come to the knowledge of the defendants/applicants that there exists a minor typing error in paragraph 21 of the 1st and 2nd defendants’ statement of defence in that the correct year in the said paragraph should be January 2009 and not January 2008.
3. No prejudice will be occasioned to the plaintiff/respondent if this application is allowed because she will be at liberty to amend her plaint and/or file a reply to the amended 1st and 2nd defendants’ statement of defence.
4. It is only just and fair that the application be allowed.
3. On 4th November, 2020, the parties asked the court to adopt their consent dated 27th October, as an order of the court. The consent is in the following terms;
TO THE DEPUTY REGISTRAR
ENVIRONMENT AND LAND COURT
CHUKA LAW COURT
CHUKA
We shall be grateful if you kindly record the following consent.
“BY CONSENT”
1. The Defendants’ Application dated 23rd October, 2020 be and is hereby allowed with no Orders as to Costs.
2. The Defendants do file and serve the Amended Defence within 7 days.
3. The Plaintiff to file and serve a reply to Amended Defence within 3 days of service of the Amended Defence.
DATED at NAIROBI this 27th day of October, 2020.
M’NJAU & MAGETO NYAMU NYAGA
ADVOCATE FOR THE PLAINTIFF ADVOCATE FOR THE DEFENDANT
4. The consent is signed by the advocates representing the parties.
5. Their consent is adopted as an order of this court.
Delivered in open Court at Chuka this 17th day of November, 2020 in the presence of;
CA: Ndegwa
Mark Murithi h/b Nyamu Nyaga for the defendant.
Mageto for the plaintiff.
P. M. NJOROGE,
JUDGE.