[2022] KEELC 3025 (KLR)
The court found that the case had not taken off and pre-trial directions had not been fully undertaken. The court considered the draft amended defence and counter-claim and determined that allowing the amendment at this stage would not cause injustice or prejudice to the Plaintiffs. The court relied on Order 8 rule...
Source-derived case information.
- Citation
- [2022] KEELC 3025 (KLR)
- Parties
- Applicant: Kenya Church of Christ (Suing through Bishop Peter Macharia Wachira); Respondent: Peter Karumbi Keingati alias Joseph Karumbi Keingati; Respondent: Andrew Watiki Gikore; Respondent: Joseph Nduati Ngendo; Respondent: Samwel Karanja Kamau; Respondent: Kiambu Dandora Company Limited; Respondent: Chief Lands Registrar, Ministry of Lands; Respondent: Karira Kinayanjui Thuo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 266 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Application for Leave to Amend Defence and File Counter Claim
- Outcome
- Application allowed; leave granted to amend defence and file counter-claim.
- Judges
- LN Mbugua
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Counter Claims, Ownership of Land, Pre Trial Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Church of Christ (Suing through Bishop Peter Macharia Wachira)
Applicant
Peter Karumbi Keingati alias Joseph Karumbi Keingati
Respondent
Andrew Watiki Gikore
Respondent
Joseph Nduati Ngendo
Respondent
Samwel Karanja Kamau
Respondent
Kiambu Dandora Company Limited
Respondent
Chief Lands Registrar, Ministry of Lands
Respondent
Karira Kinayanjui Thuo
Respondent
Procedural Posture
Environment and Land Case / Ruling on Application for Leave to Amend Defence and File Counter Claim
Legal Issues
- 1 Whether the 3rd and 7th Defendants should be granted leave to file and serve an amended defence with a counter-claim.
- 2 Whether allowing the amendment would prejudice the Plaintiffs given the stage of proceedings.
- 3 Whether the application to amend is an abuse of court process.
Ratio Decidendi
The court found that the case had not taken off and pre-trial directions had not been fully undertaken. The court considered the draft amended defence and counter-claim and determined that allowing the amendment at this stage would not cause injustice or prejudice to the Plaintiffs. The court relied on Order 8 rule 3(1) of the Civil Procedure Rules and the principle from Eastern Bakery v Castelino [1956] EA 461, which encourages amendments before hearing unless injustice would result. The application was therefore allowed, granting the 3rd and 7th Defendants leave to file and serve their amended defence and counter-claim within 14 days, with the Plaintiffs and any other party at liberty...
Court Disposition
Application allowed; leave granted to amend defence and file counter-claim.
Orders
- The 3rd and 7th Defendants are granted leave to file and serve their draft amended defence and counter-claim within 14 days, failure to which such leave shall lapse.
- The Plaintiff (and any other party) is at liberty to file their defence thereof within 14 days from date of service.
Full Case Text
Judgment text and source record
35 paragraphs
Kenya Church of Christ (Suing through Bishop Peter Macharia Wachira) v Keingati & 6 others (Environment & Land Case 266 of 2017) [2022] KEELC 3025 (KLR) (26 May 2022) (Ruling)
Neutral citation: [2022] KEELC 3025 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 266 of 2017
LN Mbugua, J
May 26, 2022
Between
Kenya Church of Christ
Applicant
Suing through Bishop Peter Macharia Wachira
and
Peter Karumbi Keingati alias Joseph Karumbi Keingati
1st Respondent
Andrew Watiki Gikore
2nd Respondent
Joseph Nduati Ngendo
3rd Respondent
Samwel Karanja Kamau
4th Respondent
Kiambu Dandora Company Limited
5th Respondent
Chief Lands Registrar, Ministry of Lands
6th Respondent
Karira Kinayanjui Thuo
7th Respondent
Ruling
1. On March 1, 2022, this court gave a raft of directions inter-alia, that a ruling shall be delivered in respect of the application dated October 27, 2021. Therein, the applicants who are 3rd & 7th Defendants are seeking leave to file and serve an amended defence with a counter-claim. They contend that they are true owners of the suit property and that they continue to suffer as Plaintiffs have illegally taken possession thereof.
2. The Plaintiffs have opposed the application via the replying affidavit of the 2nd Plaintiff averring that they stand to be prejudiced as pre-trial directions had been taken. That the application is an after though and an abuse of the court process. They contend that they are the true owners of the suit properties.
3. I have considered all the issues raised herein. I have also perused the draft amended defence and counter-claim where inter-alia there is a counter-claim to the effect that 3rd Defendant is the registered owner of the suit property.
4. The provisions of Order 8 rule 3(1) of the Civil Procedure Rules stipulate that:“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.”
5. The court of Appeal of East Africa in the locus classius Case of Eastern Bakery v Castelino [1956] EA 461 held that amendments sought before the hearing should be freely allowed if they can be made without injustice to the other side.
6. This is a case which has not taken off, and as per the last directions given by the court, 1st Defendant is in the process of filing their pleadings, while Plaintiff was directed to serve their pleadings upon the firm of Odero Were Advocates. It follows that pre-trial directions have not been fully undertaken.
7. In that regard, I allow the application dated October 27, 2021 in the following terms:1. The 3rd and 7th Defendants are granted leave to file and serve their draft amended defence and counter-claim within 14 days, failure to which such leave shall lapse.2. The Plaintiff (and any other party) is at liberty to file their defence thereof within 14 days from date of service.3. The 3rd and 7th Defendants, shall bear costs of the application.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF MAY, 2022 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-M/S Muema for the Plaintiff/Respondent in the RulingAwandu holding brief for Were for the 1st DefendantCourt Assitant: Eddel