[2017] KEELC 1659 (KLR)
The court held that applications to amend pleadings, especially before the hearing has commenced, should generally be allowed unless there is clear prejudice to the other party that cannot be compensated by costs. In this case, since the hearing had not started and the plaintiffs could be compensated by costs, there...
Source-derived case information.
- Citation
- [2017] KEELC 1659 (KLR)
- Parties
- Plaintiff: John Edward Njeru; Plaintiff: Mohamed Hassan Ali Sajan; Defendant: Commissioner of Lands; Defendant: George Karanja Njenga; Defendant: Kenneth Maina Makeri; Defendant: Elizabeth Kamau; Defendant: Isaac Mwangi Muya; Defendant: Charles Njoroge; Defendant: School Committee Nakuru Teachers Primary School; Defendant: Municipal Council of Nakuru (Education Department); Defendant: Nakuru Teachers Housing Co-operative Society Ltd
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 260 of 1999
- Procedural Posture
- Civil Application / Ruling on Application to Amend Defence to Include Counterclaim
- Outcome
- application allowed
- Judges
- MA Silau
- Legal Topics
- Amendment of Pleadings, Counterclaim, Ownership Dispute, Public Land, Eviction, Title Cancellation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Edward Njeru
Plaintiff
Mohamed Hassan Ali Sajan
Plaintiff
Commissioner of Lands
Defendant
George Karanja Njenga
Defendant
Kenneth Maina Makeri
Defendant
Elizabeth Kamau
Defendant
Isaac Mwangi Muya
Defendant
Charles Njoroge
Defendant
School Committee Nakuru Teachers Primary School
Defendant
Municipal Council of Nakuru (Education Department)
Defendant
Nakuru Teachers Housing Co-operative Society Ltd
Defendant
Procedural Posture
Civil Application / Ruling on Application to Amend Defence to Include Counterclaim
Legal Issues
- 1 Whether the defendants should be granted leave to amend their defence to include a counterclaim.
- 2 Whether allowing the amendment would prejudice the plaintiffs.
- 3 Whether the issue of ownership can be determined at this interlocutory stage.
Ratio Decidendi
The court held that applications to amend pleadings, especially before the hearing has commenced, should generally be allowed unless there is clear prejudice to the other party that cannot be compensated by costs. In this case, since the hearing had not started and the plaintiffs could be compensated by costs, there was no injustice in allowing the amendment. The court further noted that the plaintiffs' assertion of ownership was not determinative at this stage, as the title was disputed and could only be resolved after a full hearing. Therefore, the application to amend the defence to include a counterclaim was allowed, with costs to the plaintiffs.
Court Disposition
application allowed
Orders
- Applicants granted leave to amend their defence to include a counterclaim within 14 days.
- Amended defence to be served in the usual manner.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
HCC NO.260 OF 1999
JOHN EDWARD NJERU…………………............................................…….1ST PLAINTIFF
MOHAMED HASSAN ALI SAJAN…...…................................................….2ND PLAINITFF
VERSUS
COMMISSIONER OF LANDS…………..................................................….1ST DEFENDANT
GEORGE KARANJA NJENGA………................................................……2ND DEFENDANT
KENNETH MAINA MAKERI ……………................................................…3RD DEFENDANT
ELIZABETH KAMAU …………….……...............................................…..4TH DEFENDANT
ISAAC MWANGI MUYA…………..……...............................................…5TH DEFENDANT
CHARLES NJOROGE …………………...............................................…..6TH DEFENDANT
SCHOOL COMMITTEE NAKURU TEACHERS PRIMARY SCHOOL.…..7TH DEFENDANT
MUNCIPAL COUNCIL OF NAKURU (EDUCATION DEPARTMENT).…...8TH DEFENDANT
NAKURU TEACHERS HOUSING CO-OPERATIVE SOCIETY LTD…......9TH DEFENDANT
RULING
(Application for amendment of defence to include a counterclaim; hearing of the suit yet to commence; no prejudice to be suffered by plaintiffs; application allowed)
1. The application before me is that dated 9 May 2017 filed by the 2nd, 3rd, 4th, 5th, 6th and 7th defendants. It is an application brought pursuant to the provisions of Order 8 Rule 3 of the Civil Procedure Rules and the principal order sought is for leave to amend the defence of the applicants so as to include a counterclaim. The application is opposed by the plaintiff and before I go to the gist of the same, I think it is important that I put this application in the context of the case.
2. This is an old suit commenced in the year 1999. The two plaintiffs have pleaded that they are the registered owners of the land parcel Nakuru Municipality Block 25/1115 (hereinafter the suit land). On this land is a school which is under the management of the 7th defendant. They pleaded that the defendants have taken over this land illegally and in the suit, they have inter alia asked for orders of eviction. The position of the defendants is that this land is public land set apart for the establishment of a school and that the plaintiffs cannot claim the suit land.
3. In the present application, the 2nd to 7th defendants wish to add a counterclaim basically to seek prayers for the cancellation of the title held by the plaintiffs.
4. The plaintiffs have opposed the motion through the replying affidavit of the 1st plaintiff. He has principally justified his acquisition of the suit land and asserted that he is the legal owner of it.
5. I have considered the application. What is before me is an application to amend the defence so as to add a counterclaim. Generally, the court is fairly liberal when it comes to applications to amend. As was stated in the case of Eastern Bakery vs Castellino (1958) EA 461, amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs.
6. This case is yet to commence and I see no prejudice that will be suffered by the plaintiffs if I am to allow this application. I have noted the plaintiffs' assertions in their replying affidavit that they are the owners of the suit land. But that assertion within the context of this application is misplaced, because their title is disputed. The issue of who is entitled to ownership of the land cannot be made within this application but can only be done after hearing the parties on merits.
7. I see no reason why I should not allow this application and the same is hereby allowed. I direct the applicants to proceed and formally amend their defence within 14 days from today. Upon amendment, the application to be served in the usual manner and the plaintiffs are at liberty to file their reply to the amended defence and defence to counterclaim.
8. On costs, the same shall be to the plaintiffs.
9. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 20thday of September 2017.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU
In presence of :-