[2019] KEELC 3192 (KLR)
The court found that the amendments sought by the plaintiff were intended to clarify the correct parcel of land in dispute and to correct the name of the defendant. The court held that such amendments are permissible under the Civil Procedure Rules and established case law, provided they do not cause prejudice to...
Source-derived case information.
- Citation
- [2019] KEELC 3192 (KLR)
- Parties
- Plaintiff: Piry Johnstone Muye; Defendant: Shariff Omar Mohamed
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 53 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Plaint
- Outcome
- application allowed
- Judges
- JO Olola
- Legal Topics
- Amendment of Pleadings, Joinder of Parties, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Piry Johnstone Muye
Plaintiff
Shariff Omar Mohamed
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint to reflect the correct property and parties.
- 2 Whether the proposed amendment would prejudice the defendant.
Ratio Decidendi
The court found that the amendments sought by the plaintiff were intended to clarify the correct parcel of land in dispute and to correct the name of the defendant. The court held that such amendments are permissible under the Civil Procedure Rules and established case law, provided they do not cause prejudice to the other party that cannot be compensated by costs. In this case, the defendant had not yet testified, and the court was not persuaded that any prejudice would result from the amendment. Therefore, the application to amend the plaint was allowed.
Court Disposition
application allowed
Orders
- The application dated 12th March 2018 is allowed.
- The costs shall be in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CASE NO. 53 OF 2015
PIRY JOHNSTONE MUYE............................PLAINTIFF
VERSUS
SHARIFF OMAR MOHAMED..................DEFENDANT
RULING
1. I have before me for determination a Notice of Motion application dated and filed herein on 12th March 2018. By the said Motion, the Plaintiff Piry Johnstone Muye prays for leave to amend his Plaint as per a draft that he has annexed to the application.
2. The said application is premised on the grounds:-
i) That the suit relates to LR No. 7733/III/Kikambala which has since been subdivided into three portions;
ii) That it is now imperative that the Plaint be amended to reflect the true and correct position as regards the suit property and the parties herein; and
iii) That the intended amendment will assist this Court to effectually and finally determine all matters in issue.
3. In a Replying Affidavit filed herein on 22nd May 2018 by Jafar Sharif Omar, he complains that he has been “misjoined” as a Defendant herein. He further avers that he is the owner of property known as LR No. 22036-Kijipwa and not Plot No. 7733/III/Kikambala and/or the sub-division listed by the Plaintiff.
4. The deponent further avers that he is a distinct and different individual from Sharriff Omar Mohamed originally sued as the Defendant herein. It is further his case that save for the fact that the said Sharriff Omar Mohamed is his biological father, there is no agency or legal relationship between the two of them.
5. I have considered both the application and the response thereto. I have also considered the written submissions by the Learned Advocates for the parties.
6. Order 8 Rule 1(1) of the Civil Procedure Rules stipulates that:-
“The Court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.”
7. In addition, Order 8 Rule 5 stipulates that:-
“An amendment shall be allowed under sub rule(2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.”
8. In the matter before me, the Applicant contends that the amendment sought has been necessitated by a sub-division of the suit property and the clarification he has now received as to the correct name of the Defendant. On the other hand, the Defendant is opposed to the intended amendment contending that his parcel of land is not the one described by the Plaintiff and further that the Plaintiff has confused his name with that of his father.
9. As was stated by the Court of Appeal in Central Bank of Kenya –vs- Trust Bank & 4 Others, Civil Appeal No. 222 of 1998:-
“….all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in cost.”
10. In the proceedings before me, the amendments sought are meant according to the Plaintiff, to clarify the correct parcel of land in dispute. From a perusal of the annexed draft amended Plaint, the only other amendment intended to be introduced is the name “Jaffer Sharriff” as an alias or other name by which the Defendant is known.
11. I am unable to see how those amendments will occasion any prejudice to the Defendant who is yet to testify herein.
12. Accordingly the application dated 12th March 2018 is allowed.
13. The costs shall be in the cause.
Dated, signed and delivered at Malindi this 29th day of May, 2019.
J.O. OLOLA
JUDGE