[2019] KEELC 2737 (KLR)
The court found that the grounds advanced by the plaintiffs were plausible and that the amendment was necessary to capture all actual owners of the property in dispute. It held that it is in the interest of justice to allow the amendment, as the court has the discretion to permit amendments at any stage of the...
Source-derived case information.
- Citation
- [2019] KEELC 2737 (KLR)
- Parties
- Plaintiff: Margaret Wairimu Mucheru; Plaintiff: Florence Njeri Mucheru; Defendant: Manyatta Paradise Ltd; Defendant: Veronica Njeri Kaminja; Interested Party: Mugumo-Ini Residential Association
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 238 of 2010
- Procedural Posture
- Civil Case / Ruling on Application for Leave to Amend Plaint
- Outcome
- application allowed
- Judges
- LC Komingoi
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Joinder of Parties, Adjacent Property Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Wairimu Mucheru
Plaintiff
Florence Njeri Mucheru
Plaintiff
Manyatta Paradise Ltd
Defendant
Veronica Njeri Kaminja
Defendant
Mugumo-Ini Residential Association
Interested Party
Procedural Posture
Civil Case / Ruling on Application for Leave to Amend Plaint
Legal Issues
- 1 Whether the plaintiffs should be granted leave to amend the plaint to include additional parties and facts.
- 2 Whether the draft amended plaint should be deemed duly filed upon payment of requisite fees.
- 3 Whether the defendants and interested party should be granted corresponding leave to amend their pleadings.
Ratio Decidendi
The court found that the grounds advanced by the plaintiffs were plausible and that the amendment was necessary to capture all actual owners of the property in dispute. It held that it is in the interest of justice to allow the amendment, as the court has the discretion to permit amendments at any stage of the proceedings. The court further ordered that the draft amended plaint be deemed duly filed upon payment of the requisite fees, and granted corresponding leave to the defendants and interested party to amend their pleadings if necessary. The costs of the application were ordered to be borne by the plaintiff.
Court Disposition
application allowed
Orders
- Plaintiff granted leave to amend the plaint as per the amended draft.
- Draft amended plaint to be deemed duly filed upon payment of requisite fees within 14 days.
Full Case Text
Judgment text and source record
42 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CIVIL CASE NO. 238 OF 2010
MARGARET WAIRIMU MUCHERU..............1ST PLAINTIFF/APPLICANT
FLORENCE NJERI MUCHERU.......................2ND PLAINTIFF/APPLICANT
=VERSUS=
MANYATTA PARADISE LTD.......................1ST DEFENDANT/RESPONDENT
VERONICA NJERI KAMINJA...................2ND DEFENDANT/RESPONDENT
AND
MUGUMO-INI RESIDENTIAL ASSOCIATION...........INTERESTED PARTY
RULING
1. This is the notice of motion brought under order 8 rule 3 and 7 of the Civil Procedure Rules 2010, Section 1A, 1B and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya ad all other enabling provisions of the law.
2. It seeks that:-
1. That the plaintiff be granted leave to amend the plaint as per the amended draft.
2. That the draft amended plaint annexed hereto be deemed to be duly filed upon payment of the requisite court fees.
3. That costs of this application be in the cause.
3. The grounds are on the face of the application and are:-
a. The plaint dated and filed on 14th May 2010 did not capture all the actual owners of the “adjacent property” Land Parcel Number Nairobi Block 72/2425 that is also a subject matter of the suit herein.
b. The new information has materially changed the parties to this suit thereby necessitating this application to amend it.
c. This honourable court has the power and discretion to grant the orders sought.
4. The application is supported by the affidavit of Dominic Njuguna Mbigi, advocate of the plaintiff, sworn on the 27th February 2018.
5. The application is opposed. There are grounds of opposition filed by the 1st defendant dated 9th March 2018. There is also a replying affidavit by Joyce Wamuyu Mbau director of the 1st defendant sworn on the 24th August 2018.
6. On the 19th June 2018 the court directed that the application be canvassed by way of written submissions.
7. I have considered the notice of motion and the affidavit in support. I have considered the grounds of opposition, the replying affidavit and the written submissions of counsel. The issue for determination is whether this application is merited.
8. Order 8 rule 3 (1) provides that:-
“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”.
9. I have considered the grounds advanced by the counsel for the plaintiffs/applicants and find that they are plausible. I find that it is in the interest of justice that I allow the application.
10. I find merit in the application and grant the orders sought namely:-
a. That the plaintiff is hereby granted leave to amend the plaint as per the amended draft.
b. That the draft amended plaint be deemed to be duly filed upon payment of the requisite fees. To be done so within 14 days.
c. The defendant and interested party do have corresponding leave to amend their pleadings if need be within 21 days.
d. The costs of the application be borne by the plaintiff.
It is so ordered.
Dated, signed and delivered in Nairobi on this 20TH day of JUNE 2019.
……………………….
L. KOMINGOI
JUDGE
In the presence of:-
………………………………………………………..….Advocate for the Plaintiffs
………………………………………………………....Advocate for the Defendants
……………………………………………….………………………Court Assistant