[2007] KEHC 3560 (KLR)
The court found that the application for leave to amend the defence and counterclaim was not time barred, as the issue of limitation could be addressed within the main suit. The court noted that the matters in issue in the present case and the related Kajiado case were substantially the same, and that allowing the...
Source-derived case information.
- Citation
- [2007] KEHC 3560 (KLR)
- Parties
- Plaintiff: Njangotet Ole Paimpai Semera & 3 Others; Defendant: Osilalei Group Ranch & 15 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2367 of 1996
- Procedural Posture
- Civil Case / Ruling on Application for Leave to Amend Defence and Counterclaim
- Outcome
- Application for leave to amend defence and counterclaim allowed.
- Legal Topics
- Trespass to Land, Amendment of Pleadings, Limitation of Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njangotet Ole Paimpai Semera & 3 Others
Plaintiff
Osilalei Group Ranch & 15 Others
Defendant
Procedural Posture
Civil Case / Ruling on Application for Leave to Amend Defence and Counterclaim
Legal Issues
- 1 Whether the defendant should be granted leave to amend the defence and counterclaim.
- 2 Whether the application for amendment is time barred under the Limitation of Actions Act.
- 3 Whether the amendment would prejudice the plaintiff.
Ratio Decidendi
The court found that the application for leave to amend the defence and counterclaim was not time barred, as the issue of limitation could be addressed within the main suit. The court noted that the matters in issue in the present case and the related Kajiado case were substantially the same, and that allowing the amendment would not prejudice the plaintiff. The court exercised its discretion to allow the amendment, holding that it was in the interests of justice to permit the defendant to properly present their case, including enjoining three other partners. The court directed that the amended defence be filed within 14 days, and that the plaintiff be granted leave to file an amended...
Court Disposition
Application for leave to amend defence and counterclaim allowed.
Orders
- The defendant is granted leave to amend the defence and counterclaim and enjoin three other partners.
- The amended defence must be filed within 14 days of today's date.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 2367 of 1996
1. Land and Environmental Law Division
2. Civil Practice and Procedure
3. Subject of main suit land – trespass
4. Leave to amend the defence and counter claim
5. Related file Kajiado PMCC69/05 Civil case No.199/99
6. In reply – application opposed and is time barred.
7. Held: Application be and is hereby allowed
8. Case law – nil
9. Advocate:
L.S. Sane for Sane & Co. Advocates for the defendant/applicant- present
K.M.Marete for Keriako Tobiko & Co. Advocates for the plaintiff/respondent – present
NJANGOTET OLE PAIMPAI SEMERA & 3 OTHERS…………….…PLAINTIFFS
VERSUS
OSILALEI GROUP RANCH & 15 OTHERS..................................…DEFENDANTS
RULING
1: Background
1. The plaintiff/respondent sued the Osilalei Group Ranch on the issue of allocation of land. They sued for injunction restraining the 1 defendant from allocating transferring and in any way disposing of the parcel of land known as Kajiando Osilalei/1.
2. The defendant filed defence and counter claim and stated the land was divided fairly. They claim in counter claim on trespass and construction of the land.
3. It hereby noted that the defendant prays for amendment of the defence and counter claim by an application of 13 June 2007. This court was informed of a related file. The said file took a considerable time to reach this court. I did so as the said plaintiff stated that the matters in issues are the same as raise in the Kajiado court case PMCC69(OS).
In that said suit there is also an amendment that has been applied for. The matters in issue land upon the same subject matter as in this high court case. It is a suit filed well after this High court and had been filed.
4. I do not think that this matter have is time barred. The issue is one of trespass the advocate is of the opinion that a claim must be brought within 3 years. The issue of Limitation of Actions can be raised within the main suit.
5. I accordingly allow the application for leave to amend the defendant and enjoin 3 other partners. That the said defence amended be filed within 14 days of to days date and leave to file amended plaint and reply to counter claim within 14 days of service.
Dated this 31st day of July 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
L.S. Sane for Sane & Co. Advocates for the defendant/applicant- present
K.M.Marete for Keriako Tobiko & Co. Advocates for the plaintiff/respondent - present