[2018] KEELC 2234 (KLR)
The court found that the application to amend the plaint was made before the commencement of the hearing and that the amendments sought did not introduce a new cause of action but rather clarified and expanded on the reliefs arising from the same transaction as pleaded in the original plaint. The court held that...
Source-derived case information.
- Citation
- [2018] KEELC 2234 (KLR)
- Parties
- Plaintiff: Kipkingwet Mzee Yusuf; Defendant: Peter Njuguna Gitau
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 287 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Amend Plaint
- Outcome
- application allowed
- Legal Topics
- Amendment of Pleadings, Specific Performance, Declaration of Ownership, Permanent Injunction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kipkingwet Mzee Yusuf
Plaintiff
Peter Njuguna Gitau
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 include additional prayers for declaration of ownership and permanent injunction.
- 2 Whether the proposed amendments introduce a new cause of action or cause prejudice to the defendant.
- 3 Whether there has been inordinate delay in seeking the amendment.
Ratio Decidendi
The court found that the application to amend the plaint was made before the commencement of the hearing and that the amendments sought did not introduce a new cause of action but rather clarified and expanded on the reliefs arising from the same transaction as pleaded in the original plaint. The court held that there was no inordinate delay, as the matter had not proceeded beyond the pre-trial stage, and that no prejudice would be occasioned to the defendant, who would have the opportunity to respond to the amended plaint. The court also noted that the defendant's reference to Order 4 of the Civil Procedure Rules was not substantiated with any specific rule allegedly violated....
Court Disposition
application allowed
Orders
- Leave is granted to the plaintiff to amend the plaint within 14 days.
- Upon service of the amended plaint, the defendant may respond in the usual manner.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 287 OF 2015
KIPKINGWET MZEE YUSUF.............PLAINTIFF
VERSUS
PETER NJUGUNA GITAU...............DEFENDANT
RULING
(Application for leave to amend plaint, application allowed).
1. The application before me is that dated 11 September 2017 filed by the plaintiff. It is an application seeking leave to amend the plaint and the defendant filed Grounds of Opposition to oppose it.
2. The suit itself was commenced through a plaint filed on 14 October 2015. In the plaint, the plaintiff has pleaded that through an agreement executed in the years 2002 and 2004, the defendant agreed to sell to the plaintiff two plots identified as Plots No.1 and 2, to be excised from the land LR No. 12232, and two plots identified as Plots No. 4 and 5, out of the land parcel Nakuru Municipality Block 13/14. The plaintiff pleaded that he paid the required deposit but the defendant has refused to process title in his name or execute the requisite transfer forms. In the suit, the plaintiff asked for orders of specific performance to have the four plots transferred to him alongside costs and interest.
3. Through this application, the plaintiff wishes to amend the plaint to include orders of a declaration that he is the rightful owner of the 4 plots in issue, and also add orders of permanent injunction against the defendant.
4. In the Grounds of Opposition, the defendant has averred that there has been inordinate delay in seeking the amendments sought; that the proposed amendments introduce a new cause of action; and that the entire suit is incompetent as there was no proper pleading on institution of the suit as contemplated under Order 4 of the Civil Procedure Rules.
5. I have considered the application. Courts are generally liberal when it comes to applications to amend pleadings. This is so unless it is apparent that the amendment will cause great prejudice to the other party. In the instance of this case, so far, the matter has not commenced and in fact, parties have not yet gone past the pre-trial stage. I do not therefore see much substance in the argument that the plaintiff has brought this application after inordinate delay. On the argument that the amendments bring in a new cause of action, I do not think so, as what is sought to be added to the pleadings, are orders whose genesis is the same alleged sale transaction which founded the original prayers in the first place. Although Order 4 has been cited by the defendant, I really do not know what specific quarrel the defendant has with the plaint, for Order 4 has 9 rules, and it is not mentioned which rule is said to have been violated by the plaintiff.
6. On my part, I see nothing untoward about the application before me. I see no prejudice which will be caused to the defendant if I am to allow the plaintiff to amend his plaint for the defendant will have a chance to counter anything that will be filed against him. I therefore allow this application and do give leave to the plaintiff to amend his plaint within the next 14 days. Upon service, the defendant can respond in the usual manner. However, I do award costs of the application to the defendant as the plaintiff had the option of pleading his case properly in the first instance.
7. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 4th day of July 2018.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU
In presence of: -
Mr. Okiro holding brief for Mr. Andama for the plaintiff/applicant.
No appearance on the part of M/s Robert Ndubi & Co. Advocates for the defendant/respondent.
Court Assistant : Nelima Janepher.
JUSTICE MUNYAO SILA
ENVIRONMENT & LAND COURT AT NAKURU