[2022] KEELC 1148 (KLR)
The court found that the 2nd defendant had not demonstrated any prejudice or injustice that would result from allowing the amendment of the plaint. The issues raised by the 2nd defendant regarding their statutory mandate and compliance with procedures are matters for trial, not for determination at the amendment...
Source-derived case information.
- Citation
- [2022] KEELC 1148 (KLR)
- Parties
- Plaintiff: Karolyne Mwatha Mburu; Plaintiff: Maragert Wairimu Muchau; Plaintiff: Simon Mbugua; Defendant: Athi Water Services Board; Defendant: Water Resources Authority
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 306 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Plaint
- Outcome
- application allowed
- Judges
- LN Mbugua
- Legal Topics
- Amendment of Pleadings, Injunctive Relief, Compensation Claims, Riparian Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Karolyne Mwatha Mburu
Plaintiff
Maragert Wairimu Muchau
Plaintiff
Simon Mbugua
Plaintiff
Athi Water Services Board
Defendant
Water Resources Authority
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiffs should be granted leave to amend the plaint to include an alternative claim for compensation.
- 2 Whether the amendment would prejudice the defendants or cause injustice.
Ratio Decidendi
The court found that the 2nd defendant had not demonstrated any prejudice or injustice that would result from allowing the amendment of the plaint. The issues raised by the 2nd defendant regarding their statutory mandate and compliance with procedures are matters for trial, not for determination at the amendment stage. The court, guided by the principle of liberality in amendments and the absence of demonstrated prejudice, allowed the application to amend the plaint to include an alternative claim for compensation.
Court Disposition
application allowed
Orders
- The amended plaint is to be filed and served within 14 days, failing which the orders shall lapse.
- The defendants are to file and serve their amended defence within 14 days thereafter.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. 306 OF 2018
KAROLYNE MWATHA MBURU.....................................1ST PLAINTIFF
MARAGERT WAIRIMU MUCHAU................................2ND PLAINTIFF
SIMON MBUGUA .............................................................3RD PLAINTIFF
(Being the Officials of LORESHO SOUTH RESIDENTS ASSOCIATION)
VERSUS
ATHI WATER SERVICES BOARD...............................1ST DEFENDANT
WATER RESOURCES AUTHORITY..........................2ND DEFENDANT
RULING
1. Before me is notice of motion application dated 29. 9.2021filed by the Plaintiffs who are seeking orders to have the Plaint amended. They contend that when the court declined to issue orders of injunction, the Defendant invaded the suit premises and forcefully laid water pipes, hence the Plaintiffs need to include the alternative claim of compensation.
2. The 1st Defendant is not opposing the application. The second Defendant has opposed the application through grounds of opposition. They contend that they carried out their work in line with the guidelines set out under rule 116 of the Water Resource Management Rules, thus they had the mandate to demarcate riparian boundary of any water course.
3. No submissions were filed as directed by the court. The provisions of Order 8 rule 3 (1) of the Civil Procedure Rules provides that:
“ Amendment of pleading with leave.
(1) Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.”
4. In Daniel Ngetich & Another v K-REP Bank Ltd (2013) eKLR, it was held that:
“Normally the court should be liberal in granting leave to amend a pleading. But it must never grant leave for amendment if the court is of the opinion that the amendment would cause injustice or irreparable loss to the other side”
5. The 2nd Respondent has not demonstrated as to how they stand to be prejudiced if the amendment is allowed. The issues being raised by the 2nd Defendant, that they were carrying out their duties in accordance with laid down procedures and the law are issues which can be articulated during the trial.
6. In the circumstances, I allow the application dated 24. 9.2021 in the following terms:
1. The Amended plaint is to be filed and served within 14 days failure to which, the orders granted herein shall lapse.
2. The Defendants are to file and serve their amended defence within 14 days thereof.
3. Each party to bear their own costs of the application .
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 23RD DAY OF FEBRUARY, 2022 THROUGH MICROSOFT TEAMS.
LUCY N. MBUGUA
JUDGE
In the presence of:-
M/S Munyiva holding brief for Mulekya for the 1st and 2nd Respondent
Kirimi for the Plaintiff/Applicant
M/S Mohamed holding brief for Lakicha for the 2nd Defendant
Court Assistant: Eddel Barasa