[2017] KEELC 1989 (KLR)
The court found that the amendment sought by the defendant did not introduce a new cause of action nor did it intend to substitute the existing cause of action. The court further held that no prejudice would be suffered by the plaintiff if the amendment was allowed. The application was therefore allowed, and the...
Source-derived case information.
- Citation
- [2017] KEELC 1989 (KLR)
- Parties
- Plaintiff: Titame Ole Sankei; Defendant: Johnson Kiptumai Cheruiyot
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 270 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Amend Defence
- Outcome
- application allowed
- Legal Topics
- Amendment of Pleadings, Leave to Amend Defence, Counter Claims, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Titame Ole Sankei
Plaintiff
Johnson Kiptumai Cheruiyot
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Amend Defence
Legal Issues
- 1 Whether the defendant should be granted leave to amend his defence to include a counter claim.
- 2 Whether the amendment would prejudice the plaintiff or introduce a new cause of action.
Ratio Decidendi
The court found that the amendment sought by the defendant did not introduce a new cause of action nor did it intend to substitute the existing cause of action. The court further held that no prejudice would be suffered by the plaintiff if the amendment was allowed. The application was therefore allowed, and the amended defence was deemed duly filed and to be served on the plaintiff, who was granted leave to file any reply to the amended defence.
Court Disposition
application allowed
Orders
- The application dated 21/10/16 is allowed.
- The amended defence filed is deemed duly filed and to be served on the plaintiff.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 270 OF 2017
FORMERLY NAKURU HCC NO. 62 OF 2012
TITAME OLE SANKEI…………....................................................PLAINTIFF
-VERSUS-
JOHNSON KIPTUMAI CHERUIYOT …………………….....DEFENDANT
RULING
The Defendant herein has by way of Notice of Motion dated 21st October, 2016 sought to be granted leave to amend his defence. The Application was supported by several grounds on the face of the Application to which inter alia were that the suit relates to a parcel of land known as MARA/ OLOLULUNGA/197 which belongs to the Defendant. The Defendant needs to include a counter claim which was not included in his Defence and that the plaintiff will not suffer any prejudice if the Application is granted.
The Application was further supported by the Supporting Affidavit of the Defendant which he expounds on the grounds Supporting the Affidavit stating that he purchased the suit land in 1997 as the chairman of Botoret Farmers group. That the plaintiff herein despite the sale of the land has refused and failed to have the transfer into the Defendants name claiming that the Original title was lost.
The applicant further stated that the Respondent have interfered with the Land by fencing the same to third parties for cultivation.
The Applicant claims that his previous advocates have despite his interest on the land failed to include a counter claim to the defence that was filed and concludes by saying that he will suffer irreparable damage in the event his counter claim is not addressed.
The Respondent opposed the said application and has filed a replying affidavit dated 18/5/17. The Respondent contends that pleadings have been closed and hence time has expired. Further the Respondent avers that no sufficient reasons have been advanced to warrant the leave and that the amended defence is meant to delay the case.
On the date of the hearing of the Application counsel on record for the parties consented that I look at their respective pleadings and make a determination.
I have read that Application together with Supporting Affidavit and the Replying Affidavit in opposition.
Having considered the pleadings before me I see no prejudice that the Respondent will suffer in respect of the amendment sought. The amendment sought in my opinion does not seem to introduce a new cause of action and does not intend to substitute the cause of action. This position is fortified under order 8 (3) of the Civil Procedure Rules.
In view of the above I will allow the application dated 21/10/16 with no orders as to costs and order that the amended defence which was filed be deemed to be duly filed and the same be served on the plaintiff. I will also grant leave to the plaintiff to file any reply to the said amended defence.
It is so ordered.
DATED, SIGNED and DELIVERED in open court at NAROK on this 21st day of July 2017.
Mohamed N.Kullow
Judge
21/7/17
In the presence of:
Ms Kilele holding brief for Simiyu for the Defendant/Applicant
Ms. Njoroge for the Plaintiff/Respondent
CA:Chuma