[2019] KEELC 1597 (KLR)
The court found that the plaintiff did not oppose the defendant's application for leave to amend the counterclaim. The judge saw no reason to deny the application, noting that amendments should generally be allowed to enable the real issues between the parties to be determined. The court therefore granted the...
Source-derived case information.
- Citation
- [2019] KEELC 1597 (KLR)
- Parties
- Plaintiff: Safaricom Ltd; Defendant: Emfil Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 5 of 2016
- Procedural Posture
- Environment and Land Case / Ruling on Application for Leave to Amend Counterclaim
- Outcome
- application for leave to amend counterclaim allowed
- Legal Topics
- Amendment of Pleadings, Counterclaim, Leave of Court, Trespass to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Safaricom Ltd
Plaintiff
Emfil Limited
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application for Leave to Amend Counterclaim
Legal Issues
- 1 Whether the defendant should be granted leave to amend its counterclaim.
- 2 Whether there is any opposition to the prayer for amendment of the counterclaim.
Ratio Decidendi
The court found that the plaintiff did not oppose the defendant's application for leave to amend the counterclaim. The judge saw no reason to deny the application, noting that amendments should generally be allowed to enable the real issues between the parties to be determined. The court therefore granted the defendant leave to amend its counterclaim and directed that the amended counterclaim be filed and served within seven days. No order as to costs was made regarding the amendment application.
Court Disposition
application for leave to amend counterclaim allowed
Orders
- The defendant is granted leave to amend its counterclaim.
- The amended counterclaim shall be filed and served within 7 days.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MOMBASA
ELC CASE NO. 5 OF 2016
SAFARICOM LTD.........................................................PLAINTIFF/RESPONDENT
VERSUS
EMFIL LIMITED..........................................................DEFENDANT/APPLICANT
RULING
(Application for amendment of counterclaim; application allowed)
1. Through an application dated 20 May 2019, the defendant has sought two principal prayers. The first is an order for review of a ruling delivered on 16 May 2019 and the second is a prayer seeking leave to amend the defendant’s counterclaim.
2. The background is that the plaintiff, a telecommunications company, filed suit inter alia seeking to have the defendant restrained from the land parcel Kwale/Ramisi/Kinondo SS/150. The plaintiff averred that it had entered into a lease with the person it believed was the owner of the land, Jua Maisha Limited, and had proceeded to erect some telecommunication masts. The plaintiff filed suit claiming that the defendant was interfering with her quiet possession of the land and wanted the defendant stopped from doing so.
3. The defendant filed a defence and counterclaim, vide which the defendant asserted that it is she (defendant) who is the registered proprietor of the land and not Jua Maisha Limited. She claimed that the plaintiff had trespassed into her property and sought damages for trespass, and further orders that the plaintiff does dismantle the telecommunication masts erected on the suit property. The plaintiff’s suit was dismissed by Omollo J in a ruling delivered on 16 May 2019 after the defendant had filed an application seeking orders to have the plaintiff’s suit dismissed for want of prosecution. In this application, the defendant wishes to have that ruling reviewed in respect of the order of costs and also to amend the counterclaim.
4. I will not dwell too much on this aspect of review, for the plaintiff has indicated intention to oppose it, and I directed that the prayer for review be heard separately from the prayer for amendment, which prayer was not opposed by the plaintiff. This ruling is therefore restricted to the prayer seeking leave to amend the counterclaim.
5. As I mentioned, this prayer is not resisted by the plaintiff and on my part I see no reason why I should not allow it. I therefore grant the defendant leave to amend its counterclaim. I direct that the amended counterclaim be filed and served within 7 days. I make no orders as to costs in respect of the prayer for amendment of the counterclaim.
6. Orders accordingly.
DATED, SIGNED and DELIVERED at MOMBASA this 24th day of September 2019.
__________
MUNYAO S.
JUDGE.
IN THE PRESENCE OF:
No appearance on the part of M/s Andrew & Steve Advocates for the Defendant/Applicant.
No appearance on the part of M/s Cootow & Associates for the Plaintiff/Respondent.
Court Assistant; Mr. Koitamet.
___________
MUNYAO S.
JUDGE.