[2018] KEELC 899 (KLR)
The court found that although pleadings had been closed, the reasons for the amendment were sufficient to assist in the conclusive determination of the real issues between the parties. The court held that it is just and fair to allow a party to ventilate all issues, including fraud, and that the respondents would...
Source-derived case information.
- Citation
- [2018] KEELC 899 (KLR)
- Parties
- Plaintiff: Karino Ole Koriata; Defendant: Stephen Kaitet Koriata; Defendant: District Land Registrar Narok; Defendant: The Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 80 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Amend Plaint
- Outcome
- application allowed
- Judges
- MN Kullow
- Legal Topics
- Amendment of Pleadings, Fraud in Land Disputes, Leave of Court, Limitation Periods
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Karino Ole Koriata
Plaintiff
Stephen Kaitet Koriata
Defendant
District Land Registrar Narok
Defendant
The Attorney General
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint to plead fraud and claim damages.
- 2 Whether the proposed amendment is time barred or prejudicial to the defendants.
Ratio Decidendi
The court found that although pleadings had been closed, the reasons for the amendment were sufficient to assist in the conclusive determination of the real issues between the parties. The court held that it is just and fair to allow a party to ventilate all issues, including fraud, and that the respondents would not suffer prejudice as they would have the opportunity to respond to the amended plaint. The application for leave to amend was therefore allowed, and the amended plaint was deemed properly filed subject to payment of requisite fees. The defendants were also granted leave to amend their defence accordingly.
Court Disposition
application allowed
Orders
- Leave is granted to the plaintiff to amend his plaint as prayed.
- The amended plaint filed by the applicant is deemed properly filed subject to payment of requisite fees.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 80 OF 2017
FORMELY NAKURU ELC CAUSE NO. 258 OF 2014
KARINO OLE KORIATA........................................................PLAINTIFF
-VERSUS-
STEPHEN KAITET KORIATA.....................................1ST DEFENDANT
DISTIRCT LAND REGISTRAR NAROK...................2ND DEFENDANT
THE ATTORNEY GENERAL......................................3RD DEFENDANT
RULING
By a Notice of Motion dated 17th July, 2017 which was brought under Order 8 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act the Applicant sought for orders that he be granted leave to amend his plaint and the amended plaint annexed to the Motion be deemed as properly filed. The Application was based on the grounds that the proposed amendment seeks to bring to court the real issues for determination and that the same will enhance fair and just determination of the question in controversy which were not presented accurately by the previous advocates.
The Application is based on the grounds that there was fraud which was masterminded and executed by the Plaintiff and the 1st Defendant and as a result of this fraud the Defendant do continue to enjoy and benefit as a result of the aforesaid fraud and it shall be in the interest of justice that the Plaintiff/Applicant be granted leave to amend his plaint accordingly and plead fraud, a claim of damages.
The Application was opposed by the 1st Respondent who filed grounds of opposition and contend that the application is misconceived, bad in law and that the amendment sought is time barred.
When the Application was coming up for hearing, none of the Respondents made any submissions and counsel for the Applicant stated that he will rely on the pleadings as filed.
In the instant case though the pleadings have been closed the reasons for the amendments sought are such that they will conclusively assist the court in determining the real issues as between the parties and assist the court in granting a fair determination. It will be just and fair that a party is granted an opportunity to ventilate the same and it is my finding that the Respondent will not suffer any prejudice since they will have the chance to respond to the same.
The upshot of the above is that I will allow the Application dated 17th July, 2017 and order that leave be granted to the Plaintiff to amend his plaint as prayed and the amended plaint which was filed by the Applicant be deemed as properly filed subject to the payment of the requisite fees.
Defendants are also granted leave to amend their defence accordingly.
Costs in the cause.
DATED, SIGNED and DELIVERED in open court at NAROK on this 25th day of October, 2018.
Mohamed N. Kullow
Judge
25/10/18
In the presence of:
N/A for the parties and advocates
CA:Chuma