[2017] KEELC 3075 (KLR)
The court found that the applicant had demonstrated sufficient grounds for amendment, including the inadvertent omission of a land parcel and the need to correct the acreage. Since the application was not opposed and there was no evidence of prejudice to the respondents, the court exercised its discretion to allow...
Source-derived case information.
- Citation
- [2017] KEELC 3075 (KLR)
- Parties
- Applicant: Jason Gitari Njoka; Respondent: Francis Gacici Irubia; Respondent: Eileen Kagendo Mbaka; Respondent: Timothy Muriuki Mutegi; Respondent: Fredrick Mbaka M’Abore; Respondent: Ernest Murithi Gacici
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 140 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Originating Summons
- Outcome
- Application allowed.
- Judges
- FM Njoroge
- Legal Topics
- Amendment of Pleadings, Adverse Possession, Limitation of Actions, Registered Land, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jason Gitari Njoka
Applicant
Francis Gacici Irubia
Respondent
Eileen Kagendo Mbaka
Respondent
Timothy Muriuki Mutegi
Respondent
Fredrick Mbaka M’Abore
Respondent
Ernest Murithi Gacici
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Amend Originating Summons
Legal Issues
- 1 Whether the applicant should be granted leave to amend the originating summons to include omitted land parcel and correct acreage.
- 2 Whether the amendment would prejudice any party.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient grounds for amendment, including the inadvertent omission of a land parcel and the need to correct the acreage. Since the application was not opposed and there was no evidence of prejudice to the respondents, the court exercised its discretion to allow the amendment in the interest of justice and to ensure all issues were properly before the court.
Court Disposition
Application allowed.
Orders
- Leave granted to the applicant to amend the originating summons as prayed.
- The draft amended originating summons is adopted as the amended originating summons and deemed as filed and served.
Full Case Text
Judgment text and source record
43 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO 140 OF 2017
FORMERLY MERU ELC CASE NO. 33 OF 2011(O.S)
IN THE MATTER OF THE LIMITATION OF ACTONS ACT CAP 22 SECTION 7, 37 & 38
AND IN THE MATTER OF THE REGISTERED LAND ACT CAP 300 SECTION 30
AND IN THE MATTER OF AN APPLICATION BY JASON GITARI NJOKA UNDER THE LIMITATION
OF ACTIONS ACT THAT HE BE REGISTERED WITH LR; MAGUMONI/RUBATE/757, 758,
759 AND 760 IN PLACE OF EILEEN KAGENDO MBAKA, TIMOTHY MURIUKI MUTEGI,
FREDRICK MBAKA M’ABORES AND ERNEST MURITHI GACICI RESPECTIVELY
AND FOR A DECLARATION THAT THE APPLICATION BE REGISTERED AS ALL THAT
WHICH IS CONTAINED IN LR;MAGUMONI/RUBATE/757, 758, 759 AND 760
BETWEEN
JASON GITARI NJOKA..................................................APPLICANT
VERSUS
FRANCIS GACICI IRUBIA.....................................1ST RESPONDENT
EILEEN KAGENDO MBAKA................................2ND RESPONDENT
TIMOTHY MURIUKI MUTEGI...............................3RD RESPONDENT
FREDRICK MBAKA M’ABORES..........................4TH RESPONDENT
ERNEST MURITHI GACICI....................................5TH RESPONDENT
RULING
1. This application is dated 17. 2.2017 and seeks orders:
1. That the court do grant plaintiff/applicant leave to amend his pleadings and in particular the O.S dated 7th March, 2011.
2. That the draft amended O.S be adopted as the amended O.S and the same be deemed as filed and served.
3. Costs of this application be provided for.
2. The application is supported by the affidavit of JASON NJOKA and has the following grounds:
a. That land parcel LR; MAGUMONI/RUBATE/961 was inadvertently omitted as one of the suit lands.
b. That the total acreage indicated in the O.S is far less than the actual total acreage covered by the suit lands.
c. That in order to bring all the issues involved in the suit the amendment prayed for is necessary.
d. That no party stands to suffer any prejudice in the event that the orders sought are granted.
3. During interpartes hearing, the application was not opposed.
4. In the circumstances it is allowed.
5. The defendant is granted 14 days to respond to the application and to file apposite documents.
6. Costs shall be in the cause.
7. Directions on 10. 4.2017.
8. It is so ordered.
Delivered in open court at Chuka this 14th day of March, 2017 in the presence of:
CA: Ndegwa
I.C. Mugo for the plaintiff
David Gichuki for the defendant
P.M. NJOROGE
JUDGE