[2012] KEHC 5 (KLR)
The court found that the explanation for seeking amendment was rational and merited, as the inclusion of the Commissioner of Lands and District Lands Registrar Baringo as parties was necessary for the effective adjudication of the dispute regarding ownership and registration of the parcel in question. Since...
Source-derived case information.
- Citation
- [2012] KEHC 5 (KLR)
- Parties
- Plaintiff: Rodah Teriki Cheptogoch; Defendant: Kiprop Kipsang Cheserem
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 88 of 2008
- Procedural Posture
- Civil Suit / Ruling on Application for Leave to Amend Plaint
- Outcome
- Application for leave to amend plaint granted.
- Judges
- DO Ohungo
- Legal Topics
- Amendment of Pleadings, Joinder of Parties, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rodah Teriki Cheptogoch
Plaintiff
Kiprop Kipsang Cheserem
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Leave to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint to join additional parties and clarify her claim.
- 2 Whether the draft amended plaint should be deemed as properly filed and served upon payment of requisite fees.
Ratio Decidendi
The court found that the explanation for seeking amendment was rational and merited, as the inclusion of the Commissioner of Lands and District Lands Registrar Baringo as parties was necessary for the effective adjudication of the dispute regarding ownership and registration of the parcel in question. Since pleadings had closed, leave of the court was required, and no prejudice would be occasioned to the defendant by allowing the amendment. The court exercised its discretion to grant leave, ensuring that the real issues in controversy could be properly addressed and all necessary parties joined.
Court Disposition
Application for leave to amend plaint granted.
Orders
- Leave granted to the plaintiff/applicant to amend the plaint.
- The draft annexed amended plaint shall be deemed as properly filed and served upon payment of requisite court fees.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO.88 OF 2008
RODAH TERIKI CHEPTOGOCH ......... PLAINTIFF/APPLICANT
VERSUS
KIPROP KIPSANG CHESEREM .... DEFENDANT/RESPONDENT
RULING
The application dated 27/09/2011 is made under provisions of Section 3A Civil Procedure Act, Order 51 Rule 1 and Order 8 Rule 3 Civil Procedure Rules seeking that plaintiff be granted leave to amend her claim in the plaint dated 9th May 2008 and the draft annexed defence be deemed as properly filed and served.
It is based on grounds that it is absolutely necessary to amend the pleadings so as to properly and effectively enable the court to adjudicate the real issues in controversy.
The intended defendants are said to be necessary parties so as to give effect to the court’s orders and no prejudice will be suffered by the defendant by such an amendment.
There was no response to this application. The supporting affidavit explains that the applicant filed this suit seeking a declaration that she is the rightful owner of the parcel in question, and also seeking for cancellation of the certificate of lease issued in the defendant’s name. The Commissioner of Lands is the one who allocated the parcel in question and the District Lands Registrar Baringo registered the certificate of lease – this is what makes it necessary to join them in the suit.
I note that pleadings had closed, so it is necessary that the leave of the court be obtained before amended pleadings can be filed. The explanation given for the seeking amendment is in my view rational and merited. I therefore:
Grant leave to the plaintiff/applicant to amend the plaint
The draft annexed amended plaint shall be deemed as properly filed and served, upon payment of the requisite court fees.
The defendant/respondent is at liberty to file and serve an amended statement of defence if need be, within 14 days from today.
Costs shall be in the cause.
Delivered and dated this 1st day of November, 2012 at Nakuru.
H.A. OMONDI
JUDGE
Mr. Tumbe holding Orina for Applicant
N/A for defendant/respondent