[2017] KEELC 1465 (KLR)
The court found that the plaintiff had not demonstrated any prejudice that would result from granting the orders sought by the defendant. The application to amend the defence and counterclaim and to enjoin Meshack Rono as the 2nd defendant was made in good faith and was necessary for the fair and complete...
Source-derived case information.
- Citation
- [2017] KEELC 1465 (KLR)
- Parties
- Plaintiff: Kipkurgat Kibor Kibiego; Defendant: Nicholas Gichuru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 333 of 2013
- Procedural Posture
- Ruling / Application to Amend Defence and Counterclaim; Application to Enjoin Additional Defendant
- Outcome
- Application allowed; leave granted to amend defence and counterclaim and to enjoin Meshack Rono as 2nd defendant.
- Judges
- A Ombwayo
- Legal Topics
- Amendment of Pleadings, Joinder of Parties, Adverse Possession, Eviction Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kipkurgat Kibor Kibiego
Plaintiff
Nicholas Gichuru
Defendant
Procedural Posture
Ruling / Application to Amend Defence and Counterclaim; Application to Enjoin Additional Defendant
Legal Issues
- 1 Whether the defendant should be granted leave to amend the defence and counterclaim.
- 2 Whether Meshack Rono should be enjoined as the 2nd defendant in the counterclaim.
- 3 Whether the plaintiff would suffer prejudice if the orders sought are granted.
Ratio Decidendi
The court found that the plaintiff had not demonstrated any prejudice that would result from granting the orders sought by the defendant. The application to amend the defence and counterclaim and to enjoin Meshack Rono as the 2nd defendant was made in good faith and was necessary for the fair and complete determination of the dispute. The court further noted that the opposition affidavit was defective and thus disregarded. Accordingly, the court exercised its discretion to allow the amendment and joinder, directing that the amended defence be filed and served within 7 days, and the plaintiff to respond within 7 days of service.
Court Disposition
Application allowed; leave granted to amend defence and counterclaim and to enjoin Meshack Rono as 2nd defendant.
Orders
- The defendant is granted leave to amend the defence and counterclaim as prayed.
- The amended defence and counterclaim to be filed and served within 7 days.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT ELDORET
E & L CASE NO. 333 OF 2013
KIPKURGAT KIBOR KIBIEGO...........................................PLAINTIFF
VERSUS
NICHOLAS GICHURU....................................................DEFENDANT
RULING
The defendant prays that leave be granted to enable him amend the defense and counterclaim and to enjoin Meshack Rono as the 2nd defendant in the intended amended counterclaim. The application is based on grounds that it is in the best interest of justice that the court grants this application as presented to allow the applicant to enjoin the intended 2nd defendant as indicated on the drafted amended defence and counterclaim. The defendant wishes to enjoin one Meshack Rono as the 2nd defendant in the intended amended defence and counterclaim. That it is therefore only mete and just that the application herein be allowed as prayed. That it is therefore only merit and just that the application herein be allowed as prayed.
The application is supported by the affidavit of Nicholas Gichuru who states that he desires to amend his defence and counterclaim to enjoin the proposed intended 2nd defendant to be a party herein to allow for fair, just, expedient and all-inclusive hearing, consideration and final determination of this suit. That he filed a defence and counterclaim on 15th July, 2012 through his then advocate against the plaintiff/respondent herein. That the instant application is made in good faith, in interest of justice and fairness and therefore justly imperative that it is allowed as prayed. That the respondent won’t suffer any irreparable prejudice if this application is allowed. That the plaintiff, Kipkurgat Kibiego Kibor sued him for orders of eviction.
That he defended the suit and subsequently filed a counterclaim claiming the suit as a purchaser for consideration value. That however, he purchased the subject land from Meshack Ronoh with the full knowledge of the respondent herein. That following the unfolding’s herein and realizations, he now wishes to amend his defence and counterclaim and enjoin the said Meshack Ronoh as 2nd defendant in the counterclaim to enable the Hon. Court Arrived at just conclusion and determination. That he further claims ownership of the suit land as a matter of adverse possession since he has been in possession for over 12 years running uninterrupted.
The application is opposed by an affidavit which from the offset is defective as it is not clear who the deponent is. It is not clear as it appears sworn by Kipkurgat Kibor Kibiego whilst the 1st page shows that it is sworn by Nicholas Gichuru. For those reasons, I will not consider it.
I have considered the application and do find that the plaintiff has not demonstrated that he will be prejudiced if the orders are granted. I do grant orders that the defence be amended as prayed. The defence to be amended and served within 7 days. The plaintiff to file a reply to amended defence and defence to counterclaim within 7 days of service.
DATED AND DELIVERED AT ELDORET THIS 17TH DAY OF AUGUST, 2017.
A. OMBWAYO
JUDGE