[2018] KEELC 2461 (KLR)
The court held that granting leave to amend a plaint does not make a subsequent application to amend res judicata, as the main suit had not been finally determined and no evidence had been taken. The court further found that the issue of consent under section 30 of the Land Adjudication Act is a substantive matter...
Source-derived case information.
- Citation
- [2018] KEELC 2461 (KLR)
- Parties
- Plaintiff: Oloisiriri Kardale & 31 Others; Defendant: The District Land Adjudication & Settlement Officers and 2 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 277 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Leave to Amend Plaint and Enjoin/remove Parties
- Outcome
- application allowed
- Judges
- MN Kullow
- Legal Topics
- Amendment of Pleadings, Joinder and Removal of Parties, Land Adjudication Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Oloisiriri Kardale & 31 Others
Plaintiff
The District Land Adjudication & Settlement Officers and 2 Others
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Leave to Amend Plaint and Enjoin/remove Parties
Legal Issues
- 1 Whether the plaintiffs should be granted leave to amend the plaint to enjoin additional defendants and remove certain plaintiffs.
- 2 Whether the application to amend is res judicata.
- 3 Whether the application offends section 30 of the Land Adjudication Act for lack of consent from the Land Adjudication Officer.
Ratio Decidendi
The court held that granting leave to amend a plaint does not make a subsequent application to amend res judicata, as the main suit had not been finally determined and no evidence had been taken. The court further found that the issue of consent under section 30 of the Land Adjudication Act is a substantive matter to be addressed at the hearing of the main suit, not at the interlocutory stage. Accordingly, the court exercised its discretion to allow the application for leave to amend the plaint, enjoin additional defendants, and remove certain plaintiffs, subject to the procedural requirements for filing and service.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to further reamend the amended plaint dated 11/4/13 and enjoin the 7th to 55th defendants and remove the 7th, 11th, 12th, 17th, 18th to 27th plaintiffs.
- The applicant to file and serve the amended plaint within 14 days from the date of filing in person on all the defendants.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KENYA
ELC CAUSE NO. 277 OF 2017
FORMERLY KISII ELC NO. 273 OF 2012
OLOISIRIRI KARDALE & 31 OTHERS...................PLAINTIFFS
-VERSUS-
THE DISTRICT LAND ADJUDICATION
& SETTLEMENT OFFICERS AND 2 OTHERS....DEFENDANTS
RULING
(Application dated 10th July, 2017)
The Application before me is the Notice of Motion dated 10th July, 2017 seeking leave to be granted to Plaintiffs/Applicants to enjoin and add 56 more proposed defendants and remove 2nd,7th,11th,12th,17th,18th,19th, 20th,21st,22nd,23rd,24th,26th and 27th plaintiffs. The Applicants also sought for leave to amend the plaint dated 11th April, 2013 and to effect service of the said plaint in the Daily Newspapers.
The Application was based on the grounds that the court had directed the 5th and 6th Defendant be enjoined and that 2nd, 7th, 11th, 12th 17th and to 27th plaintiffs have withdrawn their claim and that they have inadvertently let out the name of the proposed defendant and that it will be in the interest of justice to enjoin the parties and the defendants will not suffer any prejudice. The Application was also supported by the affidavit of one Joseph Kisembe Kipintoi.
The Application was opposed by the respondent who contended that the Application for leave to amend is res judicata and that the proposed amendments are contrary to the provisions of Land Adjudication Act and that the same is bared by the Limitations of Actions Act.
I have read the application and the supporting affidavit and the submissions made. From the records it is clear that the Applicant herein was granted leave to amend the plaint way back in 2013, however for unknown reasons the Applicant rather than include all the parties that they wished to be included as defendants proceeded to include the 29th and 32nd plaintiffs only.
The Respondents contend that the issue of amendment was dispensed with and any other subsequent application to amend the plaint is res judicata and hence invited the court to decline the instant application.
The Respondent also contends that the application is bad in law as it offends the provisions of section 30 of the Land Adjudication Act as the applicant has not obtained the consent of the Land Adjudication Officer to commence the instant proceedings and further that there was inordinate delay by the Applicant.
Having perused the record I find that the Applicant was granted leave. However, I find that the grant of leave to amend a plaint and the making of a subsequent application does not make a suit res judicata. When leave was granted the court did not hear or take evidence in the suit and I therefore find that since the issue for determination which is the substratum of the suit has not been adjudicated upon and the court made a determination the main suit still subsisted and hence the grant of leave to amend does not make it res judicata.
On whether the Application offends the provision of section 30 of the Land Adjudication Act I find that the court in the instant application was to determine whether to grant leave or not. The issue of whether consent was obtained as per the requirement of section 30 of the land adjudication is a matter to await the final hearing of the substantive suit.
The upshot of my above finding is that I will allow the plaintiff’s application dated 10th July, 2017 in the following terms:-
1. That leave is granted to the Applicant to further reamend the amended plaint dated 11/4/13 and enjoin the 7th to 55th defendants and remove the 7th,11th,12th,17th,18th to 27th plaintiff.
2. The Applicant to file and serve the amended plaint within 14 days from the date of filing in person on all the defendants.
3. The Defendants to have 14 days from the date of service upon them to reamend their defence if they deem necessary
4. Each party to bear its costs.
DATED, SIGNED and DELIVERED in open court at NAROK on this 11th day of July, 2018
Mohammed Noor Kullow
Judge
In the presence of:-
Parties
N/A by the advocates
CA:Chuma
Mohamed Noor Kullow
Judge
11/7/18