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ELCAllowedNot stated in the extract

Twiga Chemical Industries Limited v Game Ranching Limited & 3 others [2022] KEELC 478 (KLR)

Environment and Land Court
21 March 2022
COChristine Ochieng
2,692 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a long-delayed amendment to a land dispute so key parties behind the property's title could finally be joined to the case.

What this practically means

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Executive summary

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The Plaintiff moved the court by Notice of Motion dated 18th December 2018 under Order 8 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules seeking leave to amend its Plaint of 7th December 2006. The suit sought a declaration that the lease issued to the 1st Defendant over L.R No. 7590/4 was null and void, plus eviction. The proposed amendments sought to join the estates of the late Christian Mary Baroness Hesketh (the original 999-year lessee under the 1962 lease) and John Norman Hopcraft (to whom she purportedly transferred in 1964 in breach of Clause 2(5)), who in turn purportedly transferred to the 1st Defendant in 1997. The 1st Defendant opposed, arguing the amendment was brought over 12 years after filing, the claims were time-barred, it had acquired title by adverse possession, John Norman Hopcraft was deceased, and the joinder would be embarrassing and prejudicial. Dr. David Hopcraft denied being the administrator of the Hopcraft estate. The court framed a single issue: whether leave to amend and join the proposed Defendants should be granted. Applying section 100 of the Civil Procedure Act, Order 8 Rule 5, and the Ochieng, Phillip Chemwolo, G.L. Baker, Eastern Bakery and Central Kenya authorities, the court held the amendments touched the real question in controversy (root of title), were not made in bad faith, introduced no new cause of action, and that no injustice or prejudice was demonstrated despite the delay since 2006. The estates were necessary parties. The application was allowed; the Plaintiff was to file and serve the amended Plaint within 21 days, Defendants granted 21 days to respond, with costs to abide the outcome of the suit.

Questions the Court framed

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

  1. 1.whether the Plaintiff can be granted leave to amend the Plaint and join the proposed Defendants to this suit

Key legal issues

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01

Whether leave should be granted to amend the Plaint and join the proposed Defendants

Holding

The amendment was allowed; it touched the real question in controversy (root of title), was not made in bad faith, introduced no new cause of action, and no prejudice was demonstrated.

Reasoning

The court traced the statutory power under section 100 of the Civil Procedure Act and Order 8 Rule 5, and adopted the Ochieng and Phillip Chemwolo line of authorities. Although the application was not timeous, the amendments related to transactions touching the root of the title and the dispute over ownership. Delay alone, with no bad faith, prejudice or new cause of action, does not defeat an amendment; costs and time to file defences cure any prejudice.

p. 3
02

Whether limitation and adverse possession bar the proposed joinder

Holding

Not established as a bar at this stage; the Defendant only sought adverse possession in its counterclaim and did not demonstrate the prejudice or deprivation of a limitation defence required to refuse the amendment.

Reasoning

The Defendant argued the claims against the estates were time-barred and that it had been in adverse possession for over 12 years. The court noted the amendments concerned the history of ownership relevant to the root of title, that the Defendant's counterclaim sought only adverse possession, and that no injustice or prejudice was demonstrated warranting refusal of the amendment.

p. 3

Legal principles established

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  • The court may at any time allow amendment of pleadings to determine the real question in controversy, provided the amendment is made in good faith, is timeous, does not introduce a new cause of action and causes no prejudice to the opposing party.
  • Misjoinder or non-joinder of parties cannot defeat a suit; parties transacting over the root of title are necessary parties.

Court orders

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  1. 1.Leave granted to the Plaintiff to amend the Plaint as per the Draft Amended Plaint and join the proposed Defendants
  2. 2.The Plaintiff to file and serve the amended Plaint upon all the Defendants within 21 days from the date of the ruling
  3. 3.The Defendants granted leave of 21 days to file and serve their respective Statements of Defence
  4. 4.Costs to abide the outcome of the suit

The bench

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

CO
majority

Wrote the judgment

Jurisdiction invoked
Order 8 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules; section 100 of the Civil Procedure Act

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.

It is against the foregoing that I find the Plaintiff’s Notice of Motion application dated the 18 th December, 2018 merited and will allow it.
p. 3final orders - application allowed
I direct that the Plaintiff do file and serve the amended Plaint upon all the Defendants within 21days from the date hereof, after which the Defendants are granted leave of 21 days to file and serve their respective Statements of Defence.
p. 3final orders - directions for amended plaint and defences
Costs will abide the outcome of this suit.
p. 4costs
the two estates actually transacted over the suit land, culminating in the change of ownership which forms the fulcrum of the dispute herein, I find that they are a necessary parties to be joined in these proceedings
p. 3joinder of necessary parties

Issues in the judgment

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minor

The suit is described as filed in 2006 while the Plaintiff is described as amending a 'Plaint dated 7th December, 2006'; the extract does not state the case number or the full name of the Plaintiff.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Twiga Chemical Industries Limited v Game Ranching Limited & 3 others [2022] KEELC 478 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/478/eng@2022-03-21

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