[2015] KEHC 2380 (KLR)
The court held that amendments to pleadings should generally be allowed unless the opposing party would suffer prejudice that cannot be compensated by costs. The objections raised by the plaintiff, including limitation and lack of evidence, are issues to be determined at trial and do not justify denying the...
Source-derived case information.
- Citation
- [2015] KEHC 2380 (KLR)
- Parties
- Plaintiff: Jonathan Kipyegon Maina; Defendant: John Matingwony; Defendant: 2nd Defendant (unnamed); Defendant: 3rd Defendant (unnamed); Defendant: 1st Defendant (unnamed); Defendant: 4th Defendant (unnamed); Defendant: 5th Defendant (unnamed); Defendant: Josphat Biegon
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 34 of 2008
- Procedural Posture
- Environment and Land Case / Ruling on Application to Amend Defence to Include Counterclaim
- Outcome
- application to amend defence and include counterclaim allowed
- Judges
- MA Silau
- Legal Topics
- Amendment of Pleadings, Counterclaim, Joinder of Parties, Limitation of Actions, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jonathan Kipyegon Maina
Plaintiff
John Matingwony
Defendant
2nd Defendant (unnamed)
Defendant
3rd Defendant (unnamed)
Defendant
1st Defendant (unnamed)
Defendant
4th Defendant (unnamed)
Defendant
5th Defendant (unnamed)
Defendant
Josphat Biegon
Defendant
Procedural Posture
Environment and Land Case / 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 the proposed counterclaim is time barred under the Limitation of Actions Act.
- 3 Whether the plaintiff or any party will suffer prejudice if the amendment is allowed.
Ratio Decidendi
The court held that amendments to pleadings should generally be allowed unless the opposing party would suffer prejudice that cannot be compensated by costs. The objections raised by the plaintiff, including limitation and lack of evidence, are issues to be determined at trial and do not justify denying the defendants the opportunity to properly plead their case. The court found no prejudice to the plaintiff, especially since Josphat Biegon, the intended defendant in the counterclaim, had no objection to being joined. The application to amend the defence and include a counterclaim was therefore allowed, with directions for filing and service, and costs awarded to the applicants for the...
Court Disposition
application to amend defence and include counterclaim allowed
Orders
- Defendants to file and serve amended defence and counterclaim within 7 days.
- Plaintiff and Josphat Biegon may respond within 14 days of service.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
ENVIRONMENTAL AND LAND CASE NO. 34 OF 2008
JONATHAN KIPYEGON MAINA...............PLAINTIFF/RESPONDENT
VERSUS
JOHN MATINGWONY
& 3 OTHERS.............................................DEFENDANTS/APPLICANTS
R U L I N G
(Application to amend defence to include a counterclaim; application allowed)
The application before me is that dated 22nd April, 2015 filed by the 3rd defendant seeking leave to amend his defence to include a counterclaim. There is a similar application filed by the 2nd defendant dated 3rd August, 2015 and this ruling will cover that application as well.
In this suit, the plaintiff sued five defendants. The gist of his case is that he is the registered proprietor of the land parcel Kericho/Kapsoit/355 and that the defendants have started laying claim on portions of it, on the basis that the said portions of land have been sold to them by the plaintiff's son, one Josphat Biegon. The defendants filed defences and the core of their defence is that they legally purchased the portions that they claim and that they are entitled to the same. I have looked at what the defendants propose to add and I note that they they wish to add a counterclaim for the several portions that they purchased from Josphat Biegon. They have also proposed to add Josphat Biegon as a defendant in the counterclaim and they claim from him general and special damages in the event that they cannot have the land that they have sued for.
I directed that Josphat Biegon be served with the applications and he filed an affidavit stating that he has no objection to being enjoined in the suit.
The plaintiff has however opposed the application. It is his view that the application is an afterthought and a scheme to delay the matter. It is also averred that the intended counterclaim is time barred and unenforceable under the Limitation of Actions Act. It is also contended that the averments in the counterclaim are not supported by evidence.
I have considered the application and the submissions of counsel. Courts are generally liberal when it comes to allowing a party to amend unless the other party will be occasioned great prejudice which cannot be compensated by an award of costs. I on my part would be slow to deny a party to plead his case as he wishes. If the defendants want to plead a counterclaim against the plaintiff and Josphat Biegon, I do not see what prejudice the plaintiff will suffer as he will have a chance to defend the said counterclaim. I have considered the arguments that the claim in the counterclaim is time barred and that there is no evidence to support it. These to me are matters that can be canvassed at the trial of the suit. In any event, the said Josphat Biegon has no problem being enjoined in the suit and he is ready to defend the counterclaim in so far as the same is against him. To me the objections of the plaintiff are misplaced.
I therefore allow the application to amend defence. I direct the defendants to file and serve their amended defence and counterclaim within 7 days from the date hereof. Upon service, the plaintiff and Josphat Biegon may respond to the same by filing the appropriate pleadings within 14 days. The applicants will however shoulder the costs of their applications for they had opportunity to properly plead their case in the first instance.
It is so ordered.
DELIVERED, DATED AND SIGNED THIS 2ND DAY OF OCTOBER, 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT AND LAND COURT
In the presence of;
Mr. Siele Sigira for 2nd & 3rd defendants/applicants
Mr. Obondo Koko for plaintiff/respondent
1st & 5th defendants in person- present
4th defendant-absent
Josphat Biegon- (Intended defendant in counterclaim)- absent