[2016] KEHC 5336 (KLR)
The court found that the applicant had demonstrated that fresh facts had emerged which were not previously available and that the proposed amendment would not change the subject matter of the suit. The respondent failed to demonstrate any prejudice that would be suffered if the amendment was allowed. The court...
Source-derived case information.
- Citation
- [2016] KEHC 5336 (KLR)
- Parties
- Applicant: Josephat Doe Okiria; Respondent: Ludovicus Oriama Okitoi; Respondent: Faustino Opuru Ojuloto
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 303 of 2013
- Procedural Posture
- Amendment Application / Ruling on Application for Leave to Amend Defence and Counterclaim
- Outcome
- application allowed
- Legal Topics
- Amendment of Pleadings, Leave of Court, Counterclaim Procedure, Prejudice to Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephat Doe Okiria
Applicant
Ludovicus Oriama Okitoi
Respondent
Faustino Opuru Ojuloto
Respondent
Procedural Posture
Amendment Application / Ruling on Application for Leave to Amend Defence and Counterclaim
Legal Issues
- 1 Whether the applicant should be granted leave to amend the written statement of defence and counterclaim.
- 2 Whether the proposed amendment would prejudice the respondent.
- 3 Whether the amendment introduces new issues that were not within the applicant's knowledge at the time of filing.
Ratio Decidendi
The court found that the applicant had demonstrated that fresh facts had emerged which were not previously available and that the proposed amendment would not change the subject matter of the suit. The respondent failed to demonstrate any prejudice that would be suffered if the amendment was allowed. The court emphasized that in land matters, all issues should be presented and determined comprehensively to avoid piecemeal litigation. Accordingly, the court exercised its discretion to allow the amendment, subject to payment of court fees, and granted the respondent 21 days to reply to the amendment if desired. Costs of the application were ordered to abide by the outcome of the suit.
Court Disposition
application allowed
Orders
- The applicant's amendment is deemed as filed, subject to payment of court fees.
- The respondent shall have 21 days to reply to the amendment if he so wishes.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
ENVIRONMENT AND LAND COURT CASE NO. 303 OF 2013
[Formerly Chief Magistrate’s court civil case no. 621 of 2009]
JOSEPHAT DOE OKIRIA ……………….....………….. PLAINTIFF/APPLICANT
VERSUS
LUDOVICUS ORIAMA OKITOI ……....….... 1ST DEFENDANT/RESPONDENT
FAUSTINO OPURU OJULOTO ……..…….. 2ND DEFENDANT/RESPONDENT
RULING
[1]. The applicant brings his application and quotes no rules of the Civil Procedure. He however seeks for leave to amend his written statement of defence and counter claim. He annexed a draft further amendment defence and applied for it to be admitted and be deemed part of the pleadings subject to payment of court fees, if any. The facts giving rise to the amendment are that fresh facts have emerged which were earlier not available to the defendant/applicants. He argues that the amendment will effectively address issues of fraud pleaded in the counter claim and set out appropriate reliefs hereof.
[2]. The respondent filed grounds of opposition under Order 51 Rule 14 (1) of the Civil Procedure Rules 2010. The main thrust of the opposition is that the application is geared towards rendering the site visit conducted on 4. 12. 15 an academic exercise.
[3]. In his argument, Mr. Ikapel Learned counsel for the applicant stated that he wanted to amend his statement of claim under Order 83 (1) which allows amendment at any time, subject to obtaining leave when pleadings are closed. He argued that the pleadings do not seek to change the subject matter. That the amendments they are seeking were not within the plaintiff’s knowledge when the suit was filed. That fresh and important issues arose in 2008. He argued that if they do not raise the issue now through amendment, they will not be able to raise them later. He denied that they wanted to make the site meetings an academic exercise. He stated that the applicant has not made that site visit an issue herein.
[4]. Miss Barasa, learned Counsel for the respondent argued that the applicants are introducing new evidence after 10 years. She argued that this is malice on the plaintiff’s part because the surveyors report favors their client.
[5]. I have carefully considered the argument of applicant and the response by the respondent. I have also perused the proposed amendment by the applicant. The issues raised herein can be replied to, by the respondent through a reply to the amendments. I cannot see any prejudice that will be suffered by the respondent in allowing this amendment. At least none was proved to me by the respondent. In land matters where possible, all the issues must be presented to the court, for them to be determined once and for all by the court.
I will allow the amendment to be made. The applicant’s copy of the amendment in the court file shall be deemed as filed, subject to the payment of court fees. The respondent shall have 21 days to reply to those amendment if he so wishes. The costs of this application shall abide by the outcome of this suit.
IT IS SO ORDERED.
DATEDatBUNGOMAthis 11th day of May 2016
S. MUKUNYA
JUDGE.