[2005] KEHC 1739 (KLR)
The court held that the proposed amendments to the plaint do not introduce a new cause of action that is time barred, as the relief sought is equitable and only subject to the doctrine of laches, which was not established. The joinder of the Commissioner of Lands and Attorney General is necessary for the effective...
Source-derived case information.
- Citation
- [2005] KEHC 1739 (KLR)
- Parties
- Plaintiff: Kenya Accountants and Secretaries National Examination Board; Defendant: Paul Kipkemboi Chemng’orem; Defendant: Commissioner of Lands; Defendant: Attorney General (on behalf of the Director of Surveyor)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2044 of 1993
- Procedural Posture
- Civil Case / Ruling on Application to Further Amend Plaint and Join Parties
- Outcome
- Application to further amend plaint and join parties allowed.
- Judges
- PJ Ransley
- Legal Topics
- Joinder of Parties, Amendment of Pleadings, Rectification of Register, Limitation of Actions, Government Proceedings, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Accountants and Secretaries National Examination Board
Plaintiff
Paul Kipkemboi Chemng’orem
Defendant
Commissioner of Lands
Defendant
Attorney General (on behalf of the Director of Surveyor)
Defendant
Procedural Posture
Civil Case / Ruling on Application to Further Amend Plaint and Join Parties
Legal Issues
- 1 Whether the plaintiff should be granted leave to further amend the plaint and join the Commissioner of Lands and Attorney General as parties.
- 2 Whether the proposed amendments are time barred under the Limitation of Actions Act or the doctrine of laches.
- 3 Whether failure to serve notice under section 13A of the Government Proceedings Act bars joinder of the Attorney General.
Ratio Decidendi
The court held that the proposed amendments to the plaint do not introduce a new cause of action that is time barred, as the relief sought is equitable and only subject to the doctrine of laches, which was not established. The joinder of the Commissioner of Lands and Attorney General is necessary for the effective determination of the dispute regarding alleged irregular or erroneous allocation of land. Procedural objections regarding notice under the Government Proceedings Act and underlining of amendments do not constitute valid grounds to refuse the application. The amendments are necessary to resolve the real matters in controversy, and any procedural defects can be rectified by filing...
Court Disposition
Application to further amend plaint and join parties allowed.
Orders
- Leave granted to further amend the plaint and join the Commissioner of Lands and Attorney General as parties.
- Applicant's advocates to produce a new copy of the intended Further Amended Plaint in compliance with procedural rules.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Case 2044 of 1993
KENYA ACCOUNTANTS AND SECRETARIES
NATIONAL EXAMINATION BOARD ………..…..………. PLAINTIFF
VERSUS
PAUL KIPKEMBOI CHEMNG’OREM ……………… 1ST DEFENDANT
RULING
By its Application of the 11. 3.2005 the Applicants seeks to further amend their Plaint herein, and join the Commissioner of Lands and Attorney General on behalf of the Director of Surveyor as a party. The reason for the joinder of these parties is to apply for an order for the rectification of the register in respect of the suit premises.
The reasons for the amendments are set out in the Supporting Affidavit to the Application. The Applicant states that the 1st Respondent having surrendered his title got a new grant for a bigger portion of land, which it is alleged, encroached upon the Applicant’s land.
The 1st Respondent opposed the application on a number of grounds.
1. The amendment is time barred.
There was reference to the Limitation Action Act. However in my view the relief sought by the Applicant is equitable as such the amendment can only be barred if the doctrine if laches applies. I see nothing in the proposed amendments, which can be considered as a new cause of action which is time barred. What the proposed amendments does is to set out facts on which it is alleged the 1st Respondent was given a portion of the Applicant’s land by irregularity or error. The onus of proving this lies on the Applicant. However I do not see that the 1st Defendant’s rights will be abrogated or infringed by such an enquiry nor will the amendments cause any prejudice to the 1st Defendant.
2. The Attorney General should have been served with Notice of intention to sue under section 13A of the Government Proceedings Act. This however is a matter for the Applicant to prove and is not a reason not to join the intended new parties. I am of the view that the intended new parties are necessary parties to dispose of the matter in dispute between the parties.
3. Finally, Under O.6 (a) of the Civil Procedure Rules the underlining of the proposed Further Amended Plaint is not in accordance with this order.
I order the Applicant’s Advocates to produce a new copy of the intended Further Amended Plaint.
In the result I allow the amendments as necessary to determine the real matters in controversy between the parties. Costs in cause. The Further Amended Plaint is to be filed and served within 14 days from to-day. This is an old suit, which must be set down for hearing in the last term of this year.
Dated and delivered at Nairobi this 8th day of July.2005
P.J. RANSLEY
JUDGE