[2016] KEELC 580 (KLR)
The court found that the Defendant was aware of the facts underlying the proposed counterclaim at the time of filing the original Defence, as he had already pleaded adverse possession. The Defendant had ample opportunity to amend his pleadings earlier but failed to do so without reasonable explanation. Allowing the...
Source-derived case information.
- Citation
- [2016] KEELC 580 (KLR)
- Parties
- Plaintiff: Nahla Fadhil (Suing through Daniel Mutua her lawful Attorney); Defendant: Mumbo Deri Moyo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 148 of 2012
- Procedural Posture
- Civil Case / Ruling on Application to Amend Defence and Introduce Counterclaim
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Amendment of Pleadings, Counterclaim, Adverse Possession, Eviction, Mesne Profits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nahla Fadhil (Suing through Daniel Mutua her lawful Attorney)
Plaintiff
Mumbo Deri Moyo
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Defence and Introduce Counterclaim
Legal Issues
- 1 Whether the Defendant should be granted leave to amend the Defence and introduce a counterclaim after the Plaintiff has closed their case.
- 2 Whether the delay in seeking amendment is inordinate and prejudicial to the Plaintiff.
- 3 Whether the issues raised in the proposed counterclaim could have been raised earlier.
Ratio Decidendi
The court found that the Defendant was aware of the facts underlying the proposed counterclaim at the time of filing the original Defence, as he had already pleaded adverse possession. The Defendant had ample opportunity to amend his pleadings earlier but failed to do so without reasonable explanation. Allowing the amendment at this late stage, after the Plaintiff had closed their case, would be prejudicial and would necessitate reopening the trial, causing unnecessary delay and injustice to the Plaintiff. The court held that the interests of justice and the need to avoid prejudice outweighed the Defendant's request for amendment. Consequently, the application to amend the Defence and...
Court Disposition
application dismissed with costs
Orders
- The Defendant's Application dated 25th April, 2016 is dismissed with costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 148 OF 2012
NAHLA FADHIL (Suing thr' DANIEL
MUTUA her lawful Attorney)..............................PLAINTIFF
=VERSUS=
MUMBO DERI MOYO........................................DEFENDANT
R U L I N G
1. The Defendant is seeking to amend the Defence vide his Application dated 25th April, 2016.
2. The Application is premised on the ground that the Defence was filed in a hurry and that the Defendant has now discovered that there is a counterclaim that he wants to raise.
3. According to the Defendant, the only way that the dispute can be concluded and all issues canvassed with finality is by allowing the amendment of the Defence and Counterclaim.
4. In response, the Plaintiff's Attorney deponed that the Defendant from the outset appointed a competent advocate; that the Defendant has had ample opportunity to amend the Defence and that no good reasons have been given for the inordinate delay considering that the Plaintiff has already closed his case.
5. It is the Plaintiff's case that the issues raised in the proposed counterclaim are contradictory and that the proposed amendments will convolute the matters in controversy.
6. In his oral submissions, the Defendant's advocate submitted that the court has wide discretion to amend pleadings; that no prejudice will be suffered by the Plaintiff if the amendments are allowed and that the application is meant to forestall the filing of a multiplicity of suits.
7. The Plaintiff's advocate submitted that the Defendant has had ample time to to file the amended Defence and Counterclaim and that if the application is allowed, it means that the trial has to commence de novo thus delaying the matter further.
8. This suit was commenced by way of a Plaint on 11th September 2012. In the Plaint, the Plaintiff is seeking for an order of eviction and for damages for trespass and or mesne profits since the year 2008.
9. The Defendant, through his advocate, filed his Defence on 20th November; 2012. In his Defence, the Defendant pleaded that he has been in actual possession of the suit property for over 30 years.
10. It is obvious from the Defence that the Defendant was aware that he could raise a counterclaim on the basis that he has been on the land for more than 30 years.
11. Indeed, having raised the issue of adverse possession in his Defence, the Plaintiff should pursue that issue as a Defence considering that the delay in filing the current Application is in ordinate and unreasonable.
12. The Plaintiff has testified in this matter and closed his case. It will be prejudicial to re-open the matter and re-litigate all over again.
13. If the Defendant succeeds with his Defence that he has been on the suit property for more than 30 days, then he will still be entitled to the suit property considering that the Plaintiff's suit will be time barred.
14. It is for those reasons that I dismiss the Defendant's Application dated 25th April, 2016 with costs.
Dated, signed and delivered in Malindi this 22ndday of September, 2016.
O. A. Angote
Judge