[2023] KEELC 18385 (KLR)
The court found that the application to amend the plaint, though supported by an affidavit sworn by counsel rather than the plaintiff, did not prejudice the defendants, especially as no opposition was filed. The amendment sought only to clarify the identification of the suit properties by updating plot numbers to...
Source-derived case information.
- Citation
- [2023] KEELC 18385 (KLR)
- Parties
- Plaintiff: Gideon Anunda Rogito; Defendant: Angelius Guto Mogaka; Defendant: Charles O Mogosi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 84 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Plaint
- Outcome
- application to amend plaint allowed
- Judges
- GMA Ongondo
- Legal Topics
- Amendment of Pleadings, Trespass to Land, Land Title Correction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gideon Anunda Rogito
Plaintiff
Angelius Guto Mogaka
Defendant
Charles O Mogosi
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 correct errors regarding plot numbers and titles.
- 2 Whether the affidavit in support of the application, sworn by counsel rather than the party, affects the validity of the application.
Ratio Decidendi
The court found that the application to amend the plaint, though supported by an affidavit sworn by counsel rather than the plaintiff, did not prejudice the defendants, especially as no opposition was filed. The amendment sought only to clarify the identification of the suit properties by updating plot numbers to their current registered titles and elaborating on the area of alleged trespass. The court held that, in the interests of justice and for proper determination of the real issues in controversy, the amendment should be allowed. The court directed the plaintiff to file and serve the amended plaint within 14 days, with no order as to costs.
Court Disposition
application to amend plaint allowed
Orders
- The plaintiff is granted leave to amend the plaint as per the draft annexed to the application.
- The amended plaint shall be filed within 14 days and served in the usual manner.
Full Case Text
Judgment text and source record
23 paragraphs
Rogito v Mogaka & another (Environment & Land Case 84 of 2017) [2023] KEELC 18385 (KLR) (22 June 2023) (Ruling)
Neutral citation: [2023] KEELC 18385 (KLR)
Republic of Kenya
In the Environment and Land Court at Kisii
Environment & Land Case 84 of 2017
GMA Ongondo, J
June 22, 2023
Between
Gideon Anunda Rogito
Plaintiff
and
Angelius Guto Mogaka
1st Defendant
Charles O Mogosi
2nd Defendant
(On amendment of Plaint)
Ruling
1. The application before me is that dated 7 December 2022 seeking to amend the plaint. The application is based on the ground that there is an error in the plaint that needs amendment. Nothing has been filed to oppose the application and I have given it due consideration.
2. I observe that the application is supported by an affidavit sworn by A.N Oeri who happens to be counsel acting for the plaintiff. At the outset, I need to state that it is untidy and not advisable for counsel to swear such an affidavit for the case belongs to the party. It is the party who needs to swear the affidavit to point out what problem he has discovered in his pleading that requires amendment. Be that as it may, I have gone through the affidavit which does not really say what error there is in the plaint, only that there is reference to a draft amended plaint. I have gone through the draft amended plaint. I see that in the original plaint, the plaint did state that the plaintiff has sued as owner of the Plot No. 15 Nyanchwa. His claim is that the 1st and 2nd defendants own the plots No. 14 and 16 Nyanchwa and that they have unlawfully trespassed into his Plot No. 15. What the amendment seeks to introduce is to state that these plots No. 14, 15, and 16 Nyanchwa, are now titled as Kisii Municipality Block I/ 506, 507 and 108 respectively. The claim for trespass and encroachment remains though there is more elaboration on the area said to be interfered with.
3. Despite my misgivings on counsel swearing the affidavit, I see no prejudice to the defendant if the application is allowed.
4. I will therefore proceed to allow the application and direct that the amended plaint be filed within the next 14 days and be served in the usual manner. I make no orders as to costs.
5. Orders accordingly.
DATED AND DELIVERED AT KISII THIS 22 DAY OF JUNE 2023JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURT