[2016] KEELC 655 (KLR)
The court found that there was no opposition to the application for leave to amend the plaint and that no prejudice would be occasioned to the defendants that could not be compensated by costs. The court exercised its discretion to allow the amendment, noting that the plaintiff was at liberty to properly plead his...
Source-derived case information.
- Citation
- [2016] KEELC 655 (KLR)
- Parties
- Plaintiff: Simon Kibet (suing as the administrator of the estate of Kipchumba Maru, deceased); Defendant: Chepkwony Arap Choge; Defendant: Joseph Arap Kurgat
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 32 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Amend Plaint
- Outcome
- application allowed
- Judges
- MA Silau
- Legal Topics
- Amendment of Pleadings, Joinder of Parties, Fraud in Land Registration, Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Kibet (suing as the administrator of the estate of Kipchumba Maru, deceased)
Plaintiff
Chepkwony Arap Choge
Defendant
Joseph Arap Kurgat
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint to include new defendants and plead fraud against them.
- 2 Whether the amendment would occasion prejudice to the existing defendants.
Ratio Decidendi
The court found that there was no opposition to the application for leave to amend the plaint and that no prejudice would be occasioned to the defendants that could not be compensated by costs. The court exercised its discretion to allow the amendment, noting that the plaintiff was at liberty to properly plead his case and that the inclusion of the new defendants and the plea of fraud were necessary for the just determination of the issues. The only inconvenience to the defendants would be compensable by costs, and the plaintiff would bear the costs of the application.
Court Disposition
application allowed
Orders
- The plaintiff is granted leave to file an amended plaint after giving requisite notice to the Government.
- The plaintiff shall bear the costs of the application.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
HCC NO. 32 OF 2012
SIMON KIBET (SUING AS THE ADMINISTRATOR OF THE ESTATE OF KIPCHUMBA MARU( DECEASED) …………………………….PLAINTIFF
VERSUS
CHEPKWONY ARAP CHOGE………….1ST DEFENDANT
JOSEPH ARAP KURGAT ……………2ND DEFENDANT
RULING
(Application for leave to amend plaint; application not opposed; application allowed)
1. The application before me is that dated 28 December 2015 filed by the plaintiff. It is seeking leave to amend the plaint. The original plaint was filed on 14 February 2012. In the plaint, the plaintiff pleaded that his father, one Kipchumba A. Maru (deceased) was a member of Kalenjin Enterprises, a land buying company, and he was allocated a Plot No. 211 in the year 1972. The plot is now registered as Nakuru Municipality Block 29/211. It is pleaded that upon allocation, the deceased settled on the plot where he built a home and lived with his family. In the year 2007, the defendants filed the case Nakuru CMCC No. 1103 of 2007 in the Chief Magistrate's Court at Nakuru. They asked that the plaintiff be evicted. They however contend that the title of the defendants was obtained by fraud and in this case, they seek a declaration that the suit land belongs to the plaintiffs and for cancellation of the defendant's title.
2. The defendants filed a joint defence vide which they refuted the claims of the plaintiffs. It was averred that the deceased never settled on the land but actually sold it to the defendants on 13 April 1976. The defendants then proceeded to develop it and take possession until the year 2007 when the plaintiff together with his family decided to invade the land. This prompted the defendants to file the suit Nakuru CMCC No. 1103 of 2007.
3. Through this application, the plaintiff seeks leave to amend the plaint so as to include the District Land Registrar Nakuru and the Attorney General as defendants. He also wishes to plead fraud on the part of the new defendants for allegedly conspiring with the original defendants to have them issued with title.
4. I have actually not seen anything on record filed by the defendants to oppose the motion. I on my part see no reason why I should not allow the application. I do not see what prejudice will be occasioned to the defendants save for some inconvenience which can be compensated by way of costs.
5. I therefore allow this application. The plaintiff is at liberty to file an amended plaint after giving the requisite notice to the Government. The applicant will however shoulder the costs of the application as he was at liberty to plead his case properly in the first place.
6. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 20th day of July, 2016
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
NAKURU
In presence of : -
Ms. Kipruto for plaintiff/applicant
Mr. Machage for defendant/respondent
CA: Janet
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
NAKURU