BWK (of unsound mind suing through the next friend CMK) v Samuel Maina Kung’u & 4 others [2021] KEELC 178 (KLR)
The bottom line
#Kenya's Environment and Land Court allowed a landowner to add the Land Registrar and amend her claim years later, but rejected a sloppily drafted amendment.
What this practically means
#Executive summary
#Key legal issues
#Whether the Land Registrar Murang'a should be joined as a party
The Land Registrar was joined because the suit sought revocation of title and any cancellation orders would be executed through that office, and allegations of fraud implicating the office required a fair hearing
Applying Order 1 Rule 10(2) and the Kingori and Meme principles, the court assessed whether the Registrar is a necessary/proper party, whether relief flows from him and whether any decree could be enforced without his participation. The amended plaint sought cancellation of title to be effected by the Registrar, and fraud allegations against his office could not be determined without hearing the office holder. No prejudice would befall the Respondents, and the Registrar did not oppose joinder.
Whether leave to amend the Plaint should be granted seven years after filing
Leave was granted because the application was made in good faith, was prompted by documents first served on the Applicant on 23rd June 2021, introduced no new or inconsistent cause of action and caused no injustice to the Respondents
The court applied Order 8 rules 3 and 5 and the Ochieng & 2 others v First National Bank of Chicago principles. Although the suit was seven years old, the Defendants had not complied with Order 7 Rule 5 in filing their documents, and the 'ambush' service on the hearing date justified the amendment. The amendments did not introduce a new cause of action and no prejudice was shown. The discretion was exercised in furtherance of the overriding objective under sections 1A, 1B, 3A and 3B of the Civil Procedure Act.
Whether the draft amended Plaint should be deemed duly filed
The draft amended Plaint was not adopted as filed due to non-compliance with Order 8 Rule 7's red-ink requirements, though the defect was a curable procedural technicality
Order 8 Rule 7 mandates that deleted words be struck out in red ink and added words underlined in red ink. The Applicant used black ink, constituting non-compliance with a mandatory provision. The court nonetheless found this a procedural technicality curable under Article 159(2)(b) of the Constitution and the Oxygen principles, and instead directed the Plaintiff to file a properly marked amended Plaint within 14 days.
Legal principles established
#- To 'join' a party means to add that person to the suit, whereas to 'enjoin' means to injunct or bar a party from doing something
- Allegations of fraud must be strictly pleaded and proved to a standard higher than the balance of probabilities
- An amendment should be allowed if it can be made without injustice to the other side, however late or negligent the original omission
- A necessary party is one without whose presence the court cannot effectually and completely adjudicate upon and settle all questions involved in the suit
Court orders
#- 1.The Land Registrar Murang'a is joined as a party to the suit
- 2.Leave granted to the Plaintiff/Applicant to amend the Plaint
- 3.Leave granted to file a further list of documents after close of pleadings
- 4.The Plaintiff/Applicant granted 14 days to file an amended Plaint complying with Order 8 Rule 7 of the Civil Procedure Rules
- 5.Costs of the application to abide the outcome of the main suit
- Jurisdiction invoked
- Order 1 Rule 10(2) and Order 8 of the Civil Procedure Rules, 2010; sections 1A, 1B, 3A and 3B and section 27 of the Civil Procedure Act; Articles 50(1) and 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mayuki v Siku & another; Wanjema (Intended Defendant) (Environment & Land Case 965 of 2016) [2024] KEELC 7214 (KLR)[2024] KEELC 7214 (KLR)31 Oct 2024
- Kimani v Mwai & another[2023] KEELC 19840 (KLR)19 Sept 2023
Cite this brief
#Cite this brief
Caselaw, "BWK (of unsound mind suing through the next friend CMK) v Samuel Maina Kung’u & 4 others [2021] KEELC 178 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/178/eng@2021-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.