[2022] KEELC 4871 (KLR)
The court held that amendments to pleadings are permissible at any stage before judgment to ensure that the real issues in controversy are determined. The assertion by the respondents that the application for substitution was brought after an inordinate delay was found to be misleading, as the suit had not yet been...
Source-derived case information.
- Citation
- [2022] KEELC 4871 (KLR)
- Parties
- Applicant: Seventh Day Adventist Church (E.A); Respondent: Christopher K. Saina; Respondent: Joseph Kogo; Respondent: Julia Birir; Respondent: Moses Ochola; Respondent: National Land Commission; Respondent: Land Registrar, Nandi County; Respondent: County Government; Respondent: Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kapsabet
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 120 of 2021
- Procedural Posture
- Environment and Land Case / Ruling on Application to Amend Plaint and Substitute Party
- Outcome
- application allowed
- Judges
- MN Mwanyale
- Legal Topics
- Amendment of Pleadings, Party Substitution, Limitation of Actions, Service of Process
- 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
Seventh Day Adventist Church (E.A)
Applicant
Christopher K. Saina
Respondent
Joseph Kogo
Respondent
Julia Birir
Respondent
Moses Ochola
Respondent
National Land Commission
Respondent
Land Registrar, Nandi County
Respondent
County Government
Respondent
Attorney General
Respondent
Procedural Posture
Environment and Land Case / Ruling on Application to Amend Plaint and Substitute Party
Legal Issues
- 1 Whether the applicant should be granted leave to amend the plaint to substitute the 3rd defendant.
- 2 Whether the application for substitution is time-barred due to the lapse of time since the certificate of lease was issued.
- 3 Whether the proposed amendment introduces a new cause of action against the substituted defendant.
Ratio Decidendi
The court held that amendments to pleadings are permissible at any stage before judgment to ensure that the real issues in controversy are determined. The assertion by the respondents that the application for substitution was brought after an inordinate delay was found to be misleading, as the suit had not yet been heard and was ready for hearing. The court found that the proposed amendment did not introduce a new cause of action against the substituted defendant. The right to plead limitation of actions, if any, remains available to the substituted defendant, and it is not for the other respondents to raise that issue on her behalf. Accordingly, the court exercised its discretion to...
Court Disposition
application allowed
Orders
- Leave granted to the applicant to further amend its plaint by substituting Priscillah Jepkemboi for Julia Birir as the 3rd defendant.
- The draft further amended plaint is deemed as duly filed upon payment of court fees.
Full Case Text
Judgment text and source record
42 paragraphs
Seventh Day Adventist Church (E.A) v Saina & 7 others (Environment & Land Case 120 of 2021) [2022] KEELC 4871 (KLR) (20 September 2022) (Ruling)
Neutral citation: [2022] KEELC 4871 (KLR)
Republic of Kenya
In the Environment and Land Court at Kapsabet
Environment & Land Case 120 of 2021
M N Mwanyale, J
September 20, 2022
Between
Seventh Day Adventist Church (E.A
Applicant
and
Christopher K. Saina
1st Respondent
Joseph Kogo
2nd Respondent
Julia Birir
3rd Respondent
Moses Ochola
4th Respondent
National Land Commission
5th Respondent
Land Registrar, Nandi County
6th Respondent
County Government
7th Respondent
Attorney General
8th Respondent
Ruling
1. This ruling is in respect of the Notice of Motion application dated 30th May 2022 seeking that the Applicant be granted leave to further amend its plaint by replacing the 3rd Defendant Julia Birir with Priscillah Jepkemboi; and a further prayer that the annexed draft further amended plaint be deemed as properly filed and served subject to payment of requisite Court filing fees.
2. The grounds in support of the application is that the person who ought to have been sued as 3rd Defendant is Priscillah Jepkemboi as opposed to the current 3rd Defendant Julia Birir.
3. The Application is further supported by the annexed Supporting Affidavit of the Advocate Ms. Isiaho Sawe; who reiterates the grounds in support of the application and specifically depones that the amendment is meant to determine the real issues in controversy.
4. Ms. Odeyo Counsel for 5th, 6th and 8th Defendants/Respondents as well as Ms. Kogo for the 7th Defendant are not opposed to the application however Mr. Ngigi Mbugua for the 1st and 2nd Defendants/Respondent opposed the Application.
5. A replying affidavit by the 1st Defendant was filed. In the said affidavit; the 1st Defendant in opposition to the application states the time for substitution has lapsed, since the certificate of lease was issued on July 2002.
6. Parties filed written submissions in respect of the application. I have considered the application before Court, the response to the application, the submissions and the law relation to substitution.
7. The suit herein was filed in Eldoret ELC in 2017 and transferred to Kapsabet ELC in 2021. The suit has not yet been heard although it is ready for hearing. The assertion by the Respondent that it has taken 20 years to bring in an application for substitution is therefore misleading.
8. An Amendment can be made at any stage of the suit before Judgment, so as to bring the real issued in dispute to the light.
9. I have also perused the draft amended plaint, and other than the substitution, no new cause of action against the 3rd Defendant has been pleaded.
10. The proposed 3rd Defendant shall have any opportunity to file a defence and plead Limitation of Actions, if need be, and it’s not for the 1st and 2nd Defendants to plead that on her behalf.
11. Accordingly in order to bring the real issue in controversy to light. The Application for substitution is hereby allowed and the draft amended plaint is deemed as duly filed upon payment of Court fees.
12. The amended plaint to be served on the 3rd Defendant within 7 days from date hereof, the Defendant to enter appearance in line with the Civil Procedure Rules.
13. Orders accordingly.
DATED AT KAPSABET THIS 20TH DAY OF SEPTEMBER, 2022. HON. M. N. MWANYALE,JUDGEIn the presence of;Mr. Ngigi Mbugua for the 1st and 2nd Defendant/RespondentsMr. Siboe holding brief for Ms. Isiaho Sawe for Plaintiff/applicant