[2019] KEELC 4240 (KLR)
The court found that the proposed amendments did not introduce any substantive change but merely clarified the grammatical expression of the prayers. The prayer for specific performance was essentially the same as the original prayer for completion of the transaction. The additional prayers for general damages and...
Source-derived case information.
- Citation
- [2019] KEELC 4240 (KLR)
- Parties
- Plaintiff: Kihuba Holding Limited; Defendant: Charo Karisa Ngulu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 171 of 2015
- Procedural Posture
- Land Case / Ruling on Application to Amend Plaint
- Outcome
- application granted
- Judges
- AA Omollo
- Legal Topics
- Amendment of Pleadings, Specific Performance, Bonafide Purchaser, General Damages, Refund of Deposit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kihuba Holding Limited
Plaintiff
Charo Karisa Ngulu
Defendant
Procedural Posture
Land Case / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint at the post-submissions stage.
- 2 Whether the proposed amendments would cause prejudice or injustice to the defendant.
Ratio Decidendi
The court found that the proposed amendments did not introduce any substantive change but merely clarified the grammatical expression of the prayers. The prayer for specific performance was essentially the same as the original prayer for completion of the transaction. The additional prayers for general damages and refund of deposit could be determined based on the evidence already on record, and the defendant would not be prejudiced as he could still adduce further evidence if necessary. The court held that the amendments would not cause injustice or prejudice to the defendant and that the application was merited. Accordingly, leave to amend the plaint was granted, with costs in the cause.
Court Disposition
application granted
Orders
- Leave is granted to the plaintiff to amend the plaint as prayed.
- The amended plaint shall be deemed duly filed upon payment of court fees.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
LAND CASE NO. 171 OF 2015
KIHUBA HOLDING LIMITED..........................................PLAINTIFF
-VERSUS-
CHARO KARISA NGULU..............................................DEFENDANT
RULING
1. The plaintiff/applicant vide an application dated 8th May 2018 and brought under the provisions of Order 8 Rule 3 of the Civil Procedure Rules and Section 3A and 100 of the Civil Procedure Act prays for orders:
a) That leave be granted to the plaintiff to amend the plaint and the same be deemed as duly filed upon payment of Court fees.
b) Costs of the application be in the cause.
2. The application is premised on the grounds that there is need to correct and set the particulars of prayers. Secondly that the amendment will not cause any prejudice to the defendant.
3. In opposing the application, the defendant deposed that the application amounts to abuse of Court process and will cause him injustice as he will not be able to tender evidence in regard to the prayers added. The defendant also avers that the application shall further delay the matter. He urged the Court to disallow the request for amendment.
4. The parties filed written submissions where both referred to the case of Central Kenya Ltd vs Trust Bank Ltd (2000) EALR 365 in which it was held that, “a party would be allowed to make amendments as are necessary for determining the real issues in controversy or avoiding multiplicity of suits provided there is no undue delay or no new matter and the amendment will not cause injustice to the other side. Accordingly amendments can be allowed freely at any stage of the proceedings provided it does not result in prejudice or injustice to the other party.”
5. The evidence had already been taken and parties have filed their closing submissions. The case was now at the stage for the Court to give a judgment date when this application was introduced. The amendment sought to be introduced is contained in the prayers. Prayer (b) of the plaint is worded thus:
“A declaration that the plaintiff is a bonafide purchaser entitled to complete the transaction and enjoy quiet possession of the plot now known as MSA/Mwembelegeza/1670. The proposed amendments is:
(bb) “A declaration that the plaintiff is entitled to specific performance of the sale agreement dated 29. 1.2014 in respect of plot No MSA/Mwembelegeza/1670.
(c) In the alternative an award of general damages and a refund of the deposit paid.
(e) Any other remedy the honourable Court may deem just to grant.
6. In comparing prayer (b) as pleaded and the proposed new prayer, I find no change introduced other than clarity in the grammatical expression. The plaintiff had prayed for completion of the transaction which in my view means the same thing as an order for specific performance. Secondly the prayer for general damages and or refund can easily be determined based on the evidence that is already on record. However if the defendant wishes to adduce further evidence against such a prayer nothing bars him from doing so since judgment is yet to be written.
7. In my considered view, I do not see how the intended amendments will cause injustice or prejudice to the defendant. The defendant having appreciated the provisions of section 100 of the Civil Procedure Act and the holding in the case of Central Kenya Ltd supra he ought not to have opposed the application if he wanted this matter to be concluded fast. Therefore I find the application is merited and hereby grant the application as prayed. The costs are ordered in the cause.
Dated, signed & delivered at Mombasa this 7th March 2019
A. OMOLLO
JUDGE