[2019] KEELC 1172 (KLR)
The court found that the plaintiff had established sufficient grounds for the amendment of the plaint. The proposed amendment arose from the same facts as the original cause of action, and there was no demonstrated prejudice to the defendants that could not be compensated by costs. The court exercised its discretion...
Source-derived case information.
- Citation
- [2019] KEELC 1172 (KLR)
- Parties
- Plaintiff: Marion Wakanyi Kamau; Defendant: Deliverance Church Registered Trustees; Defendant: Geoffrey Kamau Njuguna
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 12 of 2011
- 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, Procedural Fairness, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Marion Wakanyi Kamau
Plaintiff
Deliverance Church Registered Trustees
Defendant
Geoffrey Kamau Njuguna
Defendant
Procedural Posture
Civil Case / Ruling on Application for Leave to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint.
- 2 Whether the proposed amendment arises from the same facts as the original cause of action.
Ratio Decidendi
The court found that the plaintiff had established sufficient grounds for the amendment of the plaint. The proposed amendment arose from the same facts as the original cause of action, and there was no demonstrated prejudice to the defendants that could not be compensated by costs. The court exercised its discretion in favour of allowing the amendment to ensure that the real issues in controversy between the parties could be determined. The application was therefore merited and the orders sought were granted.
Court Disposition
application allowed
Orders
- Leave is granted to the plaintiff to amend the plaint in terms of the draft amended plaint annexed.
- The draft amended plaint to be duly filed and served upon payment of the requisite fees.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CIVIL CASE NO.12 OF 2011
MARION WAKANYI KAMAU..........................................PLAINTIFF
=VERSUS=
DELIVERANCE CHURCH
REGISTERED TRUSTEES................................................1ST DEFENDANT
GEOFFREY KAMAU NJUGUNA.....................................2ND DEFENDANT
RULING
1. This is the Notice of Motion dated 24th May 2018, brought under Sections 1A, 1B of the Civil Procedure Act, Cap 21 Laws of Kenya, order 8, rule 3 and order 51 rule 1 of the Civil Procedure Rules and all other enabling provisions of the law.
2. It seeks orders:-
(1) That this honourable court may be pleased to grant the plaintiff leave to amend the plaint in the terms of the draft Amended Plaint annexed hereto.
(2) That the draft amended plaint attached hereto be deemed to be duly filed and served upon payment of the requisite court fees.
(3) That the costs of this application be in the cause.
3. The grounds are on the face of the application and are set out in paragraphs (a) to (e).
4. The application is supported by the affidavit Marion Wakanyi Kamau, the plaintiff/applicant sworn on the 24th May 2018.
5. The application is opposed. There is a replying affidavit sworn by Geoffrey Kamau Njuguna, the 2nd respondent/defendant sworn on the 31st October 2018.
6. The application was canvassed by written submissions.
7. I have considered the notice of motion, the affidavit in support and the annexures. I have also considered the replying affidavit and the annexures. I have considered the replying affidavit and the annexures, the written submissions of counsel and he authorities cited.
8. The issue for determination is whether this application is merited.
9. I have considered the reasons given by the plaintiff to amend the plaint.
10. Order 8 rule 3(1) of the Civil Procedure Rules 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.”
Order 8 rule 3(5) of the Civil Procedure Rules provides that:-
“An amendment may be allowed under sub rule (2) notwithstanding that its effect will he to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.”
11. I find that the plaintiff has made out a good case for amendment of the plaint and the same is allowed. I rely on the case of Central Kenya Ltd & 4 Others vs Trust Bank Ltd CA Civil Appeal No. 222 of 1998.
12. I find merit in this application and I grant the orders sought namely:-
(a) That leave be and is hereby granted to the plaintiff to amend its plaint in terms of the draft amended plaint annexed hereto.
(b) That the draft amended plaint to be duly filed and served upon payment of the requisite fees.
(c) That the defendant do have 21 days to file amended defence if need be.
(d) That costs of this application be borne by the plaintiff.
It is so ordered.
Dated, signed and delivered in Nairobi on this 17th day of October 2019.
……………………….
L. KOMINGOI
JUDGE
In the presence of:-
No appearance for the Plaintiff
No appearance for the Defendant
Kajuju -Court Assistant