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ELCPartially Allowed· [2021] KEELC 178 (KLR)

BWK (of unsound mind suing through the next friend CMK) v Samuel Maina Kung’u & 4 others [2021] KEELC 178 (KLR)

Environment and Land Court
21 December 2021
3,176 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Murang'a (L. Gacheru J) on a Notice of Motion dated 15th July 2021 by the Plaintiff/Applicant in a land dispute that had been pending since 2014. The Applicant sought to enjoin (in substance, join) the Land Registrar Murang'a as a party, leave to amend the Plaint, leave to file a further list of documents after close of pleadings, and that the draft amended Plaint be deemed duly filed. The application followed the service of documents on the Applicant by counsel for the 1st-3rd Respondents on 23rd June 2021, the date fixed for hearing, after which the Applicant sought an adjournment. The 1st-3rd Respondents opposed the application, arguing the documents were not new, that the suit improperly collaterally challenged succession proceedings, that the Applicant lacked locus standi as she was not an administrator of the relevant estate, and that the application was designed to delay an old matter. The 4th Respondent and the Interested Party did not oppose the Motion. The court framed four issues: joinder of the Land Registrar, leave to amend, admission of the draft amended Plaint, and costs. Relying on Order 1 Rule 10(2) and the joinder principles in Joseph Njau Kingori and Julius Meme, the court held the Registrar a necessary party given the prayer for cancellation of title and the fraud allegations implicating his office, which required a fair hearing. Applying Order 8 and the Aquiline Agencies principles, leave to amend was granted, the court finding the application timely and in good faith in light of the Defendants' non-compliance with Order 7 Rule 5. However, the draft amended Plaint was not deemed filed because it failed the mandatory red-ink requirements of Order 8 Rule 7, a technicality curable under Article 159(2)(b). The application was allowed in terms of prayers 3, 4 and 6, with costs to abide the outcome of the main suit.

Key legal issues

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01

Whether the Land Registrar Murang'a should be joined as a party

Holding

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

Reasoning

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.

p. 3
02

Whether leave to amend the Plaint should be granted seven years after filing

Holding

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

Reasoning

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.

p. 4
03

Whether the draft amended Plaint should be deemed duly filed

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Land Registrar Murang'a is joined as a party to the suit
  2. 2.Leave granted to the Plaintiff/Applicant to amend the Plaint
  3. 3.Leave granted to file a further list of documents after close of pleadings
  4. 4.The Plaintiff/Applicant granted 14 days to file an amended Plaint complying with Order 8 Rule 7 of the Civil Procedure Rules
  5. 5.Costs of the application to abide the outcome of the main suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 159(2)(b)
  • Civil Procedure ActSections 1A, 1B, 3A, 3B and 27
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 7 Rule 5
  • Civil Procedure RulesOrder 8 Rules 3, 5 and 7

Cases cited (13)

  • Ochieng and Others vs National Bank of Chicago, Civil Appeal No. 147 of 1991
  • Joseph Ochieng & 2 others trading as Aquiline Agencies v First National Bank of Chicago
    [1995] eKLR
  • Martin Wesula Machyo vs Housing Finance Co. of Kenya & Other
    ELC No. 665 of 2013
  • St Patrick's Hill School Limited vs Bank of Africa Kenya Ltd
    (2018) eKLR
  • Re Estate of Barasa Kanenje Manya (Deceased) (Succession Cause 263 of 2002)
    [2020] KEHC 1 (KLR) (30 July 2020)
  • TANG GAS DISTRIBUTORS LTD V. SAID & OTHERS
    [2014] EA 448
  • JMK v MWM & another
    CoA App No. 15 of 2015, [2015] eKLR
  • Joseph Njau Kingori v Robert Maina Chege & 3 others
    [2002] eKLR, High Court Civ. No. 136 of 2000
  • Julius Meme v Republic & another
    [2004] eKLR, Misc Criminal App. No 495 of 2003
  • Emfil Limited v Registrar of Titles Mombasa & 2 others
    [2014] eKLR, Civil Appeal No. 312 of 2012
  • R...vs... Registrar of Titles, Mombasa & others Ex parte A.K Abdulgani Limited
    (2018) eKLR
  • LAKHAMSHI KHIMJI SHAH & another v AJAY SHANTILAL SHAH & 2 others
    [2010] eKLR, Nairobi HCC Civil No 2715 of 1987
  • Christopher Orina Kenyariri t/a Kenyariri & Associates Advocates v Salama Beach Hotel Limited & 3 others
    [2017] eKLR, Malindi CoA App No. 62 of 2016
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "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.