[2015] KEELC 510 (KLR)
The court found that the application for amendment was not opposed by the defendants and that the amendments sought were intended to clarify the plaintiff's case and add an alternative claim for adverse possession. The court noted that there was no demonstrated prejudice to the defendants and that the law generally...
Source-derived case information.
- Citation
- [2015] KEELC 510 (KLR)
- Parties
- Applicant: Isaack K Busienei; Defendant: Kiprono Ole Kimaiwa; Defendant: Erreu Arap Ngeno; Defendant: William Lemiso Arap Sitienei; Defendant: Kinyake Arap Cheborus
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 174 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Plaint
- Outcome
- application allowed
- Judges
- MA Silau
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Adverse Possession, Permanent Injunction, Transfer of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaack K Busienei
Applicant
Kiprono Ole Kimaiwa
Defendant
Erreu Arap Ngeno
Defendant
William Lemiso Arap Sitienei
Defendant
Kinyake Arap Cheborus
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 to elaborate on the sale agreements and add an alternative prayer for adverse possession.
- 2 Whether there is any prejudice to the defendants if the amendment is allowed.
Ratio Decidendi
The court found that the application for amendment was not opposed by the defendants and that the amendments sought were intended to clarify the plaintiff's case and add an alternative claim for adverse possession. The court noted that there was no demonstrated prejudice to the defendants and that the law generally allows amendments to pleadings to ensure that the real issues in controversy are determined. Accordingly, the court exercised its discretion to allow the amendment, granting the plaintiff leave to file and serve the amended plaint, and giving the defendants corresponding leave to amend their defence.
Court Disposition
application allowed
Orders
- Leave is granted to the plaintiff to amend the plaint.
- The amended plaint shall be filed and served within 14 days.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT OF LAND COURT OF KENYA
AT NAKURU
ELC 174 OF 2013
ISAACK K BUSIENEI …………………………..APPLICANT
VERSUS
KIPRONO OLE KIMAIWA………………1ST DEFENDANT
ERREU ARAP NGENO…………………..2ND DEFENDANT
WILLIAM LEMISO ARAP SITIENEI ….......3RD DEFENDANT
KINYAKE ARAP CHEBORUS……………4TH DEFENDANT
RULING
(Application for amendment of plaint; application not opposed; application allowed)
1. The application before me is that dated 23 June 2014 filed by the plaintiff. It is an application seeking leave to amend the plaint.
2. The original plaint was filed on 13 February 2013. The claim in the suit is over the land parcel Narok/CIS Mara/Ilmotiok/331 (the suit land) . In the original plaint the plaintiff has pleaded that in the year 1978 the suit land was sold to him by the defendants and he thereafter took possession of it. He has sought orders of permanent injunction against the defendants, and orders to compel the defendants to transfer the suit land to him and costs.
3. I have seen the draft amended plaint which has been availed by the applicant. I have seen that what the plaintiff proposes to do is to elaborate the sale agreements of 1978, which were several, and also add an alternative prayer for adverse possession.
4. Despite being served with the application the defendants have not filed anything to oppose it and neither did their counsel appear at the hearing of the application.
5. Courts are generally liberal when it comes to allowing applications for amendment. I have on my part seen no reason why I should not allow the application to amend. All that the plaintiff seeks to do is to plead his case more elegantly and add the alternative prayer for adverse possession.
6. I therefore allow the application and grant leave to the plaintiff to amend his plaint. I direct that the amended plaint be filed and served within the next 14 days. The defendants have leave to file an amended defence within 21 days of service of the amended plaint.
7. I make no orders as to costs.
It is so ordered.
Dated, signed and delivered in open court at Nakuru this 23rd April 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU
In presence of :-
Mr B N Kipkoech for plaintiff /applicant
N/A for M/s Kiptoo K & Co Advocates for defendants/respondents.
Emmnauel Juma : Court Assistant
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
AT NAKURU