[2016] KEELC 115 (KLR)
The court found that the application to amend the defence and include a counterclaim was unopposed and that the hearing of the matter had not commenced. The court applied the principle that amendments should generally be allowed unless they would cause prejudice to the other party that cannot be compensated by...
Source-derived case information.
- Citation
- [2016] KEELC 115 (KLR)
- Parties
- Plaintiff: Raphael Wandaka; Defendant: Elizabeth Wambui Mwangi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 263 of 2013
- Procedural Posture
- Environment and Land Case / Ruling on Application to Amend Defence and Include Counterclaim
- Judges
- MA Silau
- Legal Topics
- Amendment of Pleadings, Counterclaim, Land Title Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raphael Wandaka
Plaintiff
Elizabeth Wambui Mwangi
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Amend Defence and Include Counterclaim
Legal Issues
- 1 Whether the defendant should be granted leave to amend her defence to include a counterclaim.
- 2 Whether allowing the amendment would prejudice the plaintiffs.
Ratio Decidendi
The court found that the application to amend the defence and include a counterclaim was unopposed and that the hearing of the matter had not commenced. The court applied the principle that amendments should generally be allowed unless they would cause prejudice to the other party that cannot be compensated by costs. Since no such prejudice was demonstrated and the plaintiffs did not oppose the application, the court exercised its discretion to allow the amendment in the interests of justice.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO.263 OF 2013
RAPHAEL WANDAKA …………….…………….PLAINTIFF
VERSUS
ELIZABETH WAMBUI MWANGI …………...DEFENDANT
RULING
(Application to amend defence; application not opposed; application allowed).
1. The application before me is that dated 1 October 2015. It is an application brought under Order 8 Rule 3 of the Civil Procedure Rules, and Sections 63, 1A, 1B and 3A of the Civil Procedure Act. It is an application seeking leave to amend the Defence to include a Counterclaim.
2. The suit itself was commenced on 25 March 2013 by way of plaint. In the plaint, the plaintiffs pleaded that one Muturi Munene, the father and husband of the 1st and 2nd plaintiffs respectively, owned a Ballot No. 36 in Mukinye Farmers Co-operative Society Limited. It is claimed that some two persons, namely Erastus Kimanga and Geoffrey Gachathi fraudulently transferred this ballot and it eventually ended up in the name of the defendant. This ballot later became the land parcel Gilgil/Karunga Block 5/36 which is registered in the name of the defendant. In this suit, the plaintiffs want a cancellation of the defendant’s title to the said land.
3. In her defence, the defendant pleaded inter alia that she purchased the suit property for consideration from one Geoffrey Gacathi Ngengi in the year 2011. She denied having fraudulently transferred ownership of the suit property to herself and asked that the plaintiffs’ suit be dismissed with costs.
4. I have seen the draft proposed amended defence and counterclaim annexed by the defendant to her supporting affidavit. It elaborates her defence on how she acquired the suit property, and in the counterclaim, she inter alia seeks a declaration that she is the lawful proprietor of the suit property alongside an order of permanent injunction against the plaintiffs.
Nothing was filed by the plaintiffs to oppose this application.
5. I have considered the application which is for amendment. Courts are generally liberal when it comes to allowing applications to amend. I do not see what prejudice the plaintiffs stand to suffer if the application is allowed as the hearing of the matter has not even commenced.
6. I therefore allow the application. I direct the defendant to file and serve the amended defence and counterclaim within 14 days. I make no orders as to costs.
7. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 22nd day of March, 2016.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU
In presence of: -
Mr Kahigah Waitindi for defendant/applicant
No appearance on part of M/s Wambugu Kariuki & Co. for plaintiff/respondent
Court Assistant: Janet
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU