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Court of AppealDismissedCivil Appeal No. 115 of 2016

Catherine Koriko & 3 others v Evaline Rosa [2020] KECA 534 (KLR)

Court of Appeal of Kenya
10 July 2020
ASAsike-MakhandiaKIKiageOTOtieno-Odek
2,837 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that land defendants cannot switch to an adverse possession claim mid-trial when it contradicts their original inheritance-based defence.

What this practically means

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Executive summary

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The appellants were defendants in a land suit brought by the respondent in the Environment and Land Court at Kisii seeking a declaration of ownership of LR No. Transmara/Oloibosoito/12, damages for trespass and a permanent injunction. The appellants defended and counterclaimed as beneficiaries of the estate of Kimaiyo Ole Ntiira. While the ELC suit was ongoing, the High Court in Kisii Succession Cause No. 105 of 2010 determined that the appellants were not beneficiaries of the estate, and no appeal was lodged against that judgment. After the respondent closed her case, the appellants applied to amend their defence and counterclaim to plead a claim of adverse possession over the suit property. The trial judge (J. M. Mutungi, J) dismissed the application, holding that the amendment introduced a new cause of action, would change the character of the suit, and would prejudice the respondent. On appeal, Asike-Makhandia, JA, with Kiage, JA concurring, reviewed the settled principles on amendment of pleadings and on appellate interference with discretionary decisions. The Court held that a claim for adverse possession is inconsistent with a claim as beneficiary of a deceased's estate, and that the amendment was an indirect attempt to re-open litigation determined in the Succession Cause. Applying the stricter criteria for appeals against discretion - error of law or principle, irrelevant or missed relevant considerations, or a plainly wrong decision - the Court found no basis for interference. Otieno-Odek, JA passed away before judgment was delivered, and the judgment was delivered under rule 32(3) of the Court of Appeal Rules. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned ELC judge erred in declining to exercise his discretion to allow the appellants to amend their statement of defence and counterclaim after the close of the respondent's case
  2. 2.Whether an amendment introducing a claim of adverse possession, inconsistent with the appellants' original plea of beneficial ownership of a deceased's estate, ought to have been allowed
  3. 3.Whether the Court of Appeal should interfere with the exercise of discretionary power by the trial judge

Key legal issues

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01

Exercise of discretion in applications to amend pleadings after close of the opposing party's case

Holding

The trial judge properly exercised his discretion in dismissing the application to amend; the appellants failed to demonstrate any error of law, irrelevant consideration, or that the decision was plainly wrong.

Reasoning

Amendments should generally be freely allowed if they cause no injustice and the other side can be compensated by costs, but the power is discretionary. In an appeal against the exercise of discretion the criteria are stricter: error of law or principle, taking account of irrelevant considerations, failing to take account of relevant ones, or the decision being plainly wrong. None was shown; the amendment would have changed the character of the suit and prejudiced the respondent.

p. 3
02

Inconsistency between adverse possession and a claim of beneficial ownership under a deceased's estate

Holding

A claim for adverse possession cannot coexist with a claim as beneficiary of a deceased's estate; the proposed amendment introduced a wholly new and inconsistent cause of amounting to an indirect attempt to re-open the succession litigation.

Reasoning

The appellants originally anchored their defence on being beneficiaries of the estate of Kimaiyo Ole Ntiira; the High Court in the Succession Cause determined they were not beneficiaries and no appeal was lodged. One cannot claim adverse possession without conceding the registered proprietor's ownership. Allowing the amendment would circumvent the substantive effect of the succession determination.

p. 3
03

Duty of a first appellate court

Holding

As a first appeal, the Court is obliged to analyse and re-assess the evidence on record and reach its own conclusions, subject to the usual caveats on hearing and seeing witnesses.

Reasoning

Relying on Selle v Associated Motor Boat Co, the Court restated that a first appeal is by way of retrial: the Court must reconsider the evidence, evaluate it itself and draw its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.

p. 2

Legal principles established

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  • An appellate court will not interfere with a trial judge's exercise of discretion unless the judge misdirected himself, took into account irrelevant considerations, failed to take into account relevant considerations, or the decision was plainly wrong.
  • An amendment of pleadings cannot be allowed where it is inconsistent with the original pleading and entirely alters the nature of the defence or claim.
  • A claim for adverse possession is inconsistent with a claim to be a beneficiary of the estate of a deceased person; a party cannot amend pleadings in one case to re-open litigation between the same parties in another case.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AS
majority

Wrote the judgment

Wrote the principal judgment dismissing the appeal, holding that the ELC judge properly exercised discretion in refusing to allow the amendment of the defence and counterclaim to introduce a claim of adverse possession after close of the plaintiff's case.

I find that this appeal has no merit and I would dismiss with costs to the respondentsp. 4
KI
concurring

Wrote the judgment

Delivered a brief concurring judgment wholly agreeing with Makhandia, JA's analysis and conclusions with nothing useful to add.

I wholly agree with his analysis and concur in his conclusions with nothing useful to add.p. 4
OT
majority
On appeal from
High Court of Kenya at Kisii (Environment and Land Court)
Kisii ELC No. 171 of 2011
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over the High Court (Court of Appeal Rules, rule 32(3) cited for delivery of judgment)

Relief refused

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Appellants' prayer to allow amendment of the statement of defence and counterclaim to introduce a claim for adverse possession

The claim for adverse possession was inconsistent with the original claim as beneficiaries of the estate, and the amendment was an attempt to circumvent the determination in Kisii Succession Cause No. 105 of 2010

p. 3

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find that this appeal has no merit and I would dismiss with costs to the respondents As Kiage, J.A. concurs, it is so ordered.
p. 4Disposition - appeal dismissed with costs
A party cannot be allowed to amend pleadings in one case in order to re-open litigation between the same parties in another case.
p. 3Amendment to circumvent a judgment in parallel proceedings
A claim for adverse possession is inconsistent with the claim for being a beneficiary of the estate of a deceased person.
p. 3Inconsistency of adverse possession with beneficial ownership claims
the general rule is that amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other party can be compensated by costs.
p. 3General rule on amendments
In our view, in considering the various factors he did, the learned Judge was simply balancing the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.
p. 4Balancing exercise in refusing amendment, adopted from Rubina Ahmed v Guardian Bank Ltd

Issues in the judgment

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minor

The coram lists three judges but Otieno-Odek, JA passed away before judgment was delivered; the judgment was delivered under rule 32(3) of the Court of Appeal Rules by the remaining two judges.

minor

The memorandum of appeal cited two grounds (improper exercise of discretion and manifestly wrong decision), but the judgment is framed as a single-judge opinion ('JUDGMENT OF ASIKE-MAKHANDIA, JA') with Kiage, JA concurring; the judgment also uses first-person singular ('I am satisfied') rather than the plural typical of a court judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Catherine Koriko & 3 others v Evaline Rosa [2020] KECA 534 (KLR)", Case Analysis (2020). Civil Appeal No. 115 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/534/eng@2020-07-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.