[2017] KEELC 1686 (KLR)
The court found that the Plaintiff's request to amend the Plaint was justified as it sought only to correct the acreage and update the property description following subdivision, without introducing a new cause of action. The court held that the Defendant would not suffer any prejudice that could not be compensated...
Source-derived case information.
- Citation
- [2017] KEELC 1686 (KLR)
- Parties
- Plaintiff: Shashikant K. Patel; Defendant: Thomas Mark Mumo Maingey
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 124 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Plaint
- Outcome
- application allowed
- Judges
- OA Angote
- Legal Topics
- Amendment of Pleadings, Sale of Land, Description of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shashikant K. Patel
Plaintiff
Thomas Mark Mumo Maingey
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 the acreage and property description.
- 2 Whether the proposed amendment would prejudice the Defendant.
Ratio Decidendi
The court found that the Plaintiff's request to amend the Plaint was justified as it sought only to correct the acreage and update the property description following subdivision, without introducing a new cause of action. The court held that the Defendant would not suffer any prejudice that could not be compensated by costs, and that the Defendant retained the right to respond to the amended Plaint. The principles from Eastern Bakery vs. Castellino and the Civil Procedure Rules supported the court's discretion to allow amendments in the interest of justice, provided no irreparable prejudice would result. Accordingly, the application to amend was allowed, with directions for timely filing...
Court Disposition
application allowed
Orders
- The Application dated 2nd February, 2017 is allowed as prayed.
- The amended Plaint to be filed and served within fourteen (14) days from the date of this Ruling.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 124 OF 2015
SHASHIKANT K. PATEL..............................................PLAINTIFF
VERSUS
THOMAS MARK MUMO MAINGEY.........................DEFENDANT
RULING
1. In the Notice of Motion dated 2nd February, 2017, the Plaintiff is seeking for the following orders:
a. That the Honourable Court be pleased to grant leave to the Plaintiff/Applicant to amend his Plaint in terms of the annexed draft amended Plaint and the Defendant be granted corresponding leave to amend his statement of Defence if need be.
b. That the draft Plaint attached to this Application be deemed as duly filed and served.
2. The Application is premised on the grounds that the Plaintiff has sued the Defendant for the transfer of 17. 5 acres of land that he purchased from the Defendant; that during typing, the secretary erroneously typed 15 acres instead of 17. 5 acres and that it would appear from the Defence that the land has been sub-divided further.
3. It is the Plaintiff’s case that he was not aware of the sub-division of the land and all along believed that the suit land was L.R. No. 1338/R.
4. In response, the Defendant deponed that the Agreement of 9th July, 2002 was contingent upon fulfillment of certain conditions; that on 15th July, 2003, it was agreed that the transaction could not be completed due to the consent that was filed stipulating that the suit land could only be leased and that they entered into another agreement of 1st September, 2005 for the sale of 15 acres.
5. According to the Defendant, the prayer to amend the Plaint is an afterthought having been filed after two (2) years.
6. The parties filed brief submissions which I have considered.
7. The Plaintiff’s case is that the Sale Agreement between him and the Defendant was in respect to land known as L.R No. 1338/R measuring 17. 5 acres. However, the Plaintiff inadvertedly showed that the land measures 15 acres.
8. The Plaintiff has further stated that he has since learnt that the suit land is now being referred to as L.R No. 1338/111 after L.R. No. 1338/R was sub-divided by the Defendant.
9. Order 1 Rule 10(2) of the Civil Procedure Rules provides that the court may at any stage of the proceedings allow amendments to be done to pleadings.
10. In the case of Eastern Bakery vs. Castellino (1958) E.A 461, the court held that amendments to pleadings sought before the hearing should be freely allowed if they are made without injustice to the other party, and if there is no prejudice that cannot be compensated by cost.
11. The Plaintiff simply wants to cite the correct parcel number after the alleged sub-division of L.R. No. 1338/R.
12. The Defendant is at liberty to deny the averments in the amended Plaint by filing an amended Defence.
13. Indeed, whatever averments the Plaintiff is seeking to introduce in the amendments, the Plaintiff will have to prove them at trial.
14. In the circumstances, and considering that the proposed amendments do not purport to raise a new cause of action, I do not see the prejudice that the Defendant shall suffer if the amendments are allowed.
15. For those reasons, I allow the Application dated 2nd February, 2017 as prayed. The amended Plaint to be filed and served within fourteen (14) days from the date of this Ruling.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 22ND DAY OF SEPTEMBER, 2017.
O. A. ANGOTE
JUDGE