[2019] KEELC 1941 (KLR)
The court found that the amendment sought by the Defendant/Applicant was important to its defence, as it related to losses suffered following the execution of a court order. The court noted that the suit had not commenced hearing nor had pretrial directions been taken, and thus no prejudice would be suffered by the...
Source-derived case information.
- Citation
- [2019] KEELC 1941 (KLR)
- Parties
- Plaintiff: Olonana Limited; Defendant: Mara Rafiki Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 588 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Amend Defence and Counterclaim
- Outcome
- application allowed
- Judges
- MN Kullow
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Counterclaim Procedure, Demolition and Loss, Court Discretion, Prejudice to Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Olonana Limited
Plaintiff
Mara Rafiki Limited
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Amend Defence and Counterclaim
Legal Issues
- 1 Whether the Defendant/Applicant should be granted leave to amend its statement of defence and counterclaim to include particulars of loss and damage suffered after execution of a court order.
- 2 Whether the proposed amendment would prejudice the Respondent or alter the character of the suit.
Ratio Decidendi
The court found that the amendment sought by the Defendant/Applicant was important to its defence, as it related to losses suffered following the execution of a court order. The court noted that the suit had not commenced hearing nor had pretrial directions been taken, and thus no prejudice would be suffered by the Respondent if the amendment was allowed. The court exercised its discretion under Order 8 of the Civil Procedure Rules to grant leave for the amendment, holding that the interests of justice would be served and that the Respondent had not demonstrated any specific prejudice or injustice that would result from the amendment. The court further held that the amendment would not...
Court Disposition
application allowed
Orders
- Leave is granted to the Defendant/Applicant to amend its statement of defence and counterclaim dated 25th April, 2018; the draft amended defence and counterclaim dated 25th April, 2018 is deemed properly filed subject to payment of requisite fees.
- The amended defence shall be served on the Plaintiff within 14 days; the Plaintiff is at liberty to reply to the statement of defence.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
ELC CAUSE NO. 588 OF 2017
OLONANA LIMITED.........................................................PLAINTIFF
VERSUS
MARA RAFIKI LIMITED..............................................DEFENDANT
RULING
By an Application dated 5th March, 2019 and brought under Section 100,1A,3A of the Civil Procedure Rules the Applicant sought for the following orders: -
1. That the Application be certified as urgent and be heard ex parte in the first instance.
2. That the Defendant/Applicant be granted leave to amend the Statement of defence and counter claim dated 25th April, 2018 and filed on the 25th day of May, 2018.
3. Costs be in the cause.
The Application was based on the grounds that the execution of a court order issued on 21st December, 2017 resulted in the complete demolition of the Plaintiff’s/Applicant’s property consequence which they had suffered loss and damage and that the Applicant was to provide a list of all the damages it suffered and hence the instant suit where it seeks the leave of the court to amend its Statement of Defence and counter claim and that the aforesaid amendment will not prejudice the Respondent and that the same will serve in the interest of justice.
To the Application the Applicant annexed a supporting affidavit and a draft amended statement of defence. In the supporting affidavit sworn by one Uwe Heerdes he averred that pursuant to an order of the court, the Respondent in its execution had annihilated and demolished structures and he wishes to be give leave to amend the statement of his defence to include the damages and loss that he suffered.
The Application was opposed by the Respondent who filed a Replying Affidavit sworn by one Muriu Waiganjo on 26th March, 2019. The Respondent on his affidavit averred that the instant Application was filed late and is only meant to alter the character of the suit introduction of previously unpleaded and inflated particulars of special damages. He stated that though the court has power to grant amendments the court should never allow amendments that will alter the character of the suit.
The Application was disposed by way of written submissions that both parties filed. In its submissions the Applicant stated that the position on law that the Applicant be allowed to amend their pleading so as to assist the court in properly determining the real question but in controversy between the parties. The Applicant averred that the amendment sought will not be prejudicial to the Respondent and that the proposed amendment is only meant to assist the court.
The Applicant further averred that the proposed amendment contrary to the allegations by the Respondent will not alter the character of the suit but will facilitate the court in determining the real question in contrary and that the Respondent has not demonstrated any prejudice or injustice that they will suffer and thus pray that the application be allowed.
The Respondent contend that the orders sought are discretionary and the court is vested with wide powers to allow amendments of pleadings. However, the Applicant intended amendment is not supported by any evidence and that the special damage sought have not been particularized and further that there are no witness statements and the amendment sought will further delay the hearing of the matter.
I have read and carefully considered the application before me and the submissions filed by counsel and this being an application for amendment the same is sufficiently addressed by the provisions of Order 8 Rule 3 and 5 of the Civil Procedure Rules and the parameter with which the court can exercise its discretion already defined. The Applicant wishes to amend his defence to include losses he suffered when the Respondent enforced an order that was issued by the court. The amendment sought in my mind is important to the Applicant’s defence and in any event the suit in which the amendment is sought has not even commenced for hearing nor pretrial directions taken and in the circumstances I don’t see any prejudice the Respondent will suffer in the event that the amendment sought is allowed.
From the foregoing it is my finding that the instant Application is worthy of benefiting from the discretion of the court and I will thus allow the Notice of Motion dated 5th March, 2019 in the following terms: -
(i) That leave is granted to the Defendant/Applicant to amend its statement of defence and counter claim dated 25th April, 2018 and the draft amended defence and counter claim dated 25th April, 2018 be deemed as properly filed subject to the payment of the requisite fees.
(ii) That the amended defence be served on the Plaintiff within the next 14 days and the Plaintiff be at liberty to reply to the statement of defence.
(iii) Each party to bear its own costs.
DATED, SIGNED and DELIVERED in open court atNAROKon this 25thday of July, 2019
Mohammed Kullow
Judge
25/7/19
In the presence of: -
Mr Kiptoo holding brief for Kere for the plaintiff
Mr Kilele for Omollo for the Defendant/Applicant
CA:Chuma/Kimiriny