[2014] KEHC 6494 (KLR)
The court found that the applicant sought to amend the plaint to enforce a consent order made in 1992, more than 20 years after the fact, and to introduce a claim against the 2nd defendant who was not party to the original consent and had no privity of contract with the plaintiff. The amendment was therefore...
Source-derived case information.
- Citation
- [2014] KEHC 6494 (KLR)
- Parties
- Applicant: Lucia Kibui Muchiri; Plaintiff: John Githua Muchiri (deceased); Respondent: Koton Wandabe; Respondent: Raymond Nyeris Plal
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Case 136 of 2006
- Procedural Posture
- Civil Case / Ruling on Application to Further Amend Plaint
- Outcome
- application dismissed
- Legal Topics
- Amendment of Pleadings, Limitation of Actions, Consent Orders, Privity of Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucia Kibui Muchiri
Applicant
John Githua Muchiri (deceased)
Plaintiff
Koton Wandabe
Respondent
Raymond Nyeris Plal
Respondent
Procedural Posture
Civil Case / Ruling on Application to Further Amend Plaint
Legal Issues
- 1 Whether the applicant should be granted leave to further amend the plaint to reflect the correct land parcel number and introduce a new cause of action.
- 2 Whether the proposed amendment is time-barred under the law of limitation.
- 3 Whether the amendment would prejudice the respondents, particularly the 2nd defendant who was not party to the original consent.
Ratio Decidendi
The court found that the applicant sought to amend the plaint to enforce a consent order made in 1992, more than 20 years after the fact, and to introduce a claim against the 2nd defendant who was not party to the original consent and had no privity of contract with the plaintiff. The amendment was therefore time-barred under the Limitation of Actions Act and would cause undue prejudice to the 2nd defendant, who acquired the property lawfully and could not be compensated by costs. The court held that allowing the amendment would be unfair and contrary to the principles governing amendment of pleadings, particularly where limitation and prejudice are involved.
Court Disposition
application dismissed
Orders
- The application to further amend the plaint is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL CASE NO. 136 OF 2007
JOHN GITHUA MUCHIRI …....................................... PLAINTIFF
VERSUS
KOTON WANDABE
RAYMOND NYERIS PLAL ….................................. DEFENDANT
R U L I N G
The applicant Lucia Kibui Muchiri brought a notice of motion dated 7th January, 2014 in which she seeks leave of the court to further amend the plaint. The applicant had been granted leave to amend the plaint on 18/6/2013.
The applicant now seeks leave to further amend the plaint to reflect the correct Land Parcel Number. Initially the land parcel No. had been indicated as West Pokot/Siyoi/1633 but due to subdivisions the suit land is now comprised in land parcel No. West Pokot/Siyoi/2728.
The application is opposed by the respondents based on ground of opposition dated 4th February, 2014. The respondents contend that the application is frivolous, vexations and an abuse of the process of court. The respondents further contend that the application is res-judicata and that the applicant seeks to introduce a new cause of action.
I have considered the application by the applicant as well as theobjection to the same by the respondents. Mr Ngeywa for the respondent submitted that the application is time barred and cannot be granted. In response to this submission Mr Kiarie for the applicant submitted that the issue of limitation can be canvassed in the defence.
I am aware that amendments may be allowed at any time before judgment. I am also aware that costs where appropriate can be granted to a respondent in an application for amendment. The court should also consider what prejudice if any the respondent will suffer as a result of the amendment. It should also be considered whether the said amendment is caught up by limitation.
In the present case the applicant is seeking to amend the plaint to bring in a cause of action which arose around 1989 in Kitale Senior Resident Magistrate Civil Case No. 267 of 1989 between Kuton Wandabe and John Githua.
John Githua is the late husband of the plaintiff herein who came into this suit after the death of her husband. A consent was recorded on18/6/1992 in which the plaintiff named in the case in paragraph 6 hereinabove agreed to transfer 3½ acres to the defendant in return for the defendant removing a caution he had lodged on title No. West Pokot/Siyoi/28.
John Githua relocated from West Pokot in 1993 before he could enforce the orders arising from the consent. The first respondent who was the plaintiff in Kitale SRMCC 267 of 1989 had, LR No. West Pokot/Siyoi/28 subdivided into several parcels. He sold one of the sub divided parcels to the 2nd defendant/respondent herein.
The plaintiff is now seeking to amend the plaint to bring in parcel No. West Pokot/Siyoi/2728 which is in the name of the 2nd defendant/respondent.
What in essence the applicant is seeking to do is to enforce theconsent order of 18/6/1992 which granted her husband 3½ acres. The suit herein was filed 15 years after the said consent. The amendment is sought 22 years later. The amendment is targeted at the portion held by the 2nd defendant who had no privity of contract with the plaintiff. The amendment is not only time barred but will greatly prejudice the 2nd defendant/respondent. No amount of costs can compensate the 2nd defendant.
I find that the amendment is sought after lapse of a long period. It will not be fair to allow it. The application is dismissed with costs to the respondents.
It is so ordered.
Dated, signed and delivered at Kitale don this 13th day of March, 2014.
E. OBAGA,
JUDGE
In the presence of Mr Kiarie for plaintiff and M/S Arunga for Mr Ngeywa for the defendants. Court Clerk – Kassachoon.
E. OBAGA,
JUDGE
13/3/2014