[2018] KEELC 1542 (KLR)
The court found that the applicant had demonstrated sufficient grounds for the amendment of the plaint, as the suit land had been subdivided during the pendency of the suit and the amendments were necessary to enable the court to determine the real issues in controversy. The respondent failed to oppose the...
Source-derived case information.
- Citation
- [2018] KEELC 1542 (KLR)
- Parties
- Plaintiff: Margaret Naisianoi Olososo; Defendant: Joshua Morana Olososo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Cause 372 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Amend Plaint
- Outcome
- Application allowed; leave to amend plaint granted.
- Judges
- MN Kullow
- Legal Topics
- Amendment of Pleadings, Subdivision of Land, Leave of Court, Unopposed Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Naisianoi Olososo
Plaintiff
Joshua Morana Olososo
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 reflect the subdivision of the suit land.
- 2 Whether the unopposed status of the application warrants granting the orders sought.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient grounds for the amendment of the plaint, as the suit land had been subdivided during the pendency of the suit and the amendments were necessary to enable the court to determine the real issues in controversy. The respondent failed to oppose the application despite being given an opportunity. Accordingly, the court exercised its discretion to allow the amendment as prayed, with costs in the cause.
Court Disposition
Application allowed; leave to amend plaint granted.
Orders
- Leave is granted to the plaintiff to amend the plaint as prayed in the Notice of Motion dated 3rd November, 2017.
- The amended plaint attached to the application is deemed as duly filed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
EL CAUSE NO. 372 OF 2017
MARGARET NAISIANOI OLOSOSO.....................PLAINTIFF
VERSUS
JOSHUA MORANA OLOSOSO............................DEFENDANT
RULING
The Application before me is the Notice of Motion dated 3rd November, 2017 seeking for leave to amend the Plaint dated 10th April, 2017 and the amended plaint attached to the Application be deemed as duly filed.
The Application was based on the grounds that the suit land Cis Mara/Enabelbel/Enengetia/221 was initially not sub-divided but during the pendency of the suit herein the parcel was sub-divided into CIS MARA/ENABELBEL/ENENGETIA/1227, 1228 and 1229 and that the proposed 2nd Defendant carried out the said sub-division.
The Applicant further states that the amendments will enable the court to determine the issue between the parties and to support the grounds hereinabove stated. The Application was supported by the Affidavit of Margaret Naisianoi Olososo in which she deponed to the grounds which the application is based.
When the Application came up for hearing before me on 24th July, 2018 I granted leave to the Respondent to file their response and have the Application disposed off by way of written submissions.
The Respondent despite the grant of time has failed to respond to the Application arising from failure to file his Replying Affidavit and the Application stands unopposed. In the circumstances, I will allow the Applicant to amend the Plaint as prayed. Costs be in the cause.
Dated, Signed and Delivered in open court at NAROK on this 25th day of September, 2018
Mohammed Noor Kullow
Judge
25/9/18
In the presence of:-
Nchoe holding brief for Muigai for the plaintiff
N/A for the Defendant
CA:Chuma