[2019] KEELC 3040 (KLR)
The court found that the 5th defendant, having not filed a memorandum of appearance or defence, lacked audience to oppose the amendment of the plaint. The application for amendment was therefore allowed. Regarding the application for interlocutory injunction and possession, the court held that granting possession to...
Source-derived case information.
- Citation
- [2019] KEELC 3040 (KLR)
- Parties
- Plaintiff: Mary Shakwei Cheboswony; Plaintiff: Chemwolo Kelendich Soito Alias Soitot; Defendant: Daniel Cherutich Ngeno; Defendant: Julius Kiptanui Kiplagat; Defendant: Philip Tuitoek; Defendant: Christopher T. Kiplagat; Defendant: The County of Uasin-Gishu Land Registrar
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 96 of 2014
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Applications (amendment of Plaint and Injunction)
- Outcome
- Plaintiffs' application for amendment of plaint allowed; defendants' application for interlocutory injunction and possession dismissed.
- Legal Topics
- Amendment of Pleadings, Interlocutory Injunctions, Possession of Land, Counterclaims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Shakwei Cheboswony
Plaintiff
Chemwolo Kelendich Soito Alias Soitot
Plaintiff
Daniel Cherutich Ngeno
Defendant
Julius Kiptanui Kiplagat
Defendant
Philip Tuitoek
Defendant
Christopher T. Kiplagat
Defendant
The County of Uasin-Gishu Land Registrar
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Applications (amendment of Plaint and Injunction)
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint before judgment.
- 2 Whether the defendants should be granted an interlocutory injunction to take possession of the suit land pending determination of the suit.
Ratio Decidendi
The court found that the 5th defendant, having not filed a memorandum of appearance or defence, lacked audience to oppose the amendment of the plaint. The application for amendment was therefore allowed. Regarding the application for interlocutory injunction and possession, the court held that granting possession to the defendants at this stage would effectively determine the substantive issues in the suit prematurely, particularly as the plaintiffs were in occupation and the defendants' counterclaim was yet to be determined. The court maintained the existing temporary injunction restraining the plaintiffs from transferring or selling the land, finding it sufficient to preserve the...
Court Disposition
Plaintiffs' application for amendment of plaint allowed; defendants' application for interlocutory injunction and possession dismissed.
Orders
- Plaintiffs granted leave to amend the plaint and serve the defendants within 14 days, failing which the order lapses.
- Defendants' application for interlocutory injunction and possession is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ELDORET
CIVIL SUIT NO. 96 OF 2014
MARY SHAKWEI CHEBOSWONY........................................1ST PLAINTIFF
CHEMWOLO KELENDICH SOITO Alias SOITOT...........2ND PLAINTIFF
VERSUS
DANIEL CHERUTICH NGENO............................................1ST DEFENDANT
JULIUS KIPTANUI KIPLAGAT............................................2ND DEFENDANT
PHILIP TUITOEK...................................................................3RD DEFENDANT
CHRISTOPHER T.KIPLAGAT..............................................4TH DEFENDANT
THE COUNTY OF UASIN-GISHU LAND REGISTRAR...5TH DEFENDANT
RULING
This ruling is in respect of two applications dated 11th February 2019 by the plaintiff/applicant and one dated 18th February 2019 by the 1st to 4th Defendants respectively. The plaintiff’s application is for amendment of plaint which is not opposed by the 1st to 4th defendants but by the 5th defendant. The second application is for an injunction restraining the plaintiffs from ploughing and interfering with the suit parcels of land. It also seeks for an order to authorize the defendants to enter, take possession and utilize the suit parcel pending the hearing and determination of the suit.
Counsel argued the application and relied on the grounds on the face of the application and the respective affidavits. Counsel for the plaintiff filed grounds of opposition to the application for injunction and submitted that allowing the application for taking possession is tantamount to determining the suit at an interlocutory stage.
Counsel for the 5th defendant opposed the application for amendment of the plaint but did not wish to participate in the application for injunction as it did not affect his client. It was Counsel’s submission that the amendment was to introduce new claims which was denied by Counsel for the plaintiff.
Analysis and determination
The application for amendment of plaint was not opposed by the 1st to 4th defendants who are the main parties to this suit. The AG who is the 5th defendant opposed the application for amendment on the ground that it is meant to introduce new claims. It should be noted that the 5th defendant has neither filed a memorandum of appearance nor a defence to enable it have audience in this case.
The court is having issues with the representation of the AG as they do not adhere to timelines set by procedure to file pleadings. They are not in any hurry to file defenses yet they want to participate in suits. This makes it very difficult for matters to proceed as scheduled.
Amendments of pleadings can be done at any time before judgment upon application by a party. The court also has powers to allow such amendments. I find that the 5th defendant’s opposition to the amendment is unwarranted as they lack audience in this case. I therefore allow the application for amendment of plaint and order that the plaintiff files an amended plaint and serve the defendants within 14 days failure of which the order lapses.
On the second application for injunction, I notice from the pleadings and the admission by the defendant that the plaintiffs are the ones in occupation of the suit land. Counsel submits that the defendants have filed a counterclaim so they should be put in possession pending the hearing and determination of the suit.
Allowing this application would be tantamount to determining this suit at an interlocutory stage. These are the issues that the court will be determining at the end of the case. Supposing we give an order for the defendants to take possession, then it will mean that the court has allowed their counterclaim as prayed.
The court had given a temporary order of injunction stopping the plaintiffs from transferring or selling the suit land until this suit is heard and determined. This order is sufficient to preserve the substratum of the case until the case is finalized.The court declines to order putting the defendants into possession of the suit land at this stage. The application is therefore dismissed with no orders as to costs.
Dated and delivered at Eldoret on this 29th day of May, 2019.
M.A. ODENY
JUDGE
RULING READ IN OPEN COURT in the presence of Mr.Kandie holding brief for Mr.Magut for the Defendant and in the absence of Mr.Cheptarus for the Plaintiff.
Mr.Mwelem – court Assistant