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Oreng & another v Ouma (Sued as the legal representative of Pitalis Ogola Ombewa) & 2 others (Environment & Land Case 42 of 2021) [2024] KEELC 782 (KLR)

Environment and Land Court
19 February 2024
482 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan land court let plaintiffs swap their adverse possession claim for a different one, but they paid Kshs 4,000 even though nobody objected.

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 Homa Bay (G.M.A Ong'ondo, J) on a notice of motion dated 2nd November 2023 brought by the plaintiffs/applicants under, inter alia, Order 8 Rule 3(1) of the Civil Procedure Rules, 2010. The applicants sought to amend the originating summons dated 8th November 2016 and substitute it with an amended plaint. They explained that the suit had been commenced by originating summons on the understanding that the claim lay in adverse possession, but on further instructions and scrutiny of the facts, a case of acquisition by adverse possession did not arise, necessitating the amendment. They contended that the suit had not been heard inter-partes, that no prejudice would be suffered by the respondents, and that the amendment was intended to determine the real question in controversy. The defendants/respondents, through Miss Agade, raised no objection to the application but sought costs. The court, guided by Article 159(2)(b) of the Constitution, sections 3 and 19 of the Environment and Land Court Act, 2015, and sections 1A, 3 and 3A of the Civil Procedure Act, held that costs follow the event under the proviso to section 27(1) of the Civil Procedure Act, citing Jasbir Singh Rai v Tarlochan Singh Rai (2014) eKLR. The application was found meritorious and allowed in terms of order No. 2, with the amended pleading to be filed and served within 14 days. The plaintiffs were ordered to bear the costs of the application, fixed at Kshs 4,000/=, payable within 14 days.

Questions the Court framed

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

  1. 1.Whether the plaintiffs should be allowed to amend the originating summons dated 8th November 2016 and substitute it with an amended plaint
  2. 2.What costs, if any, should be awarded to the unopposing respondents

Key legal issues

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01

Whether to allow substitution of an originating summons for adverse possession with an amended plaint

Holding

The application was allowed in terms of order No. 2; the amendment was necessary because, on scrutiny of the facts, a case of acquisition by adverse possession did not arise, no prejudice would be suffered as the suit had not been heard inter-partes, and the amendment would determine the real question in controversy.

Reasoning

The suit was originally commenced by originating summons on the understanding that the claim was one of adverse possession. On further instructions, the applicants appreciated that adverse possession did not arise, necessitating an amendment. The respondents raised no objection, confining themselves to costs. Guided by the overriding objective of dispensing justice without delay under Article 159(2)(b), the ELC Act and sections 1A, 3 and 3A of the Civil Procedure Act, the court found the application meritorious and allowed it.

p. 2
02

Costs of the unopposed application

Holding

Costs follow the event and are within the court's discretion under the proviso to section 27(1) of the Civil Procedure Act; the plaintiffs were ordered to pay the respondents Kshs 4,000/= within 14 days.

Reasoning

Although Miss Agade raised no objection to the amendment, she sought costs. Citing section 27(1) of the Civil Procedure Act and Jasbir Singh Rai v Tarlochan Singh Rai (2014) eKLR, the court held that costs follow the event. It fixed the costs at Kshs 4,000/=, payable within 14 days, rather than making them costs in the cause as the applicants had sought.

p. 2

Legal principles established

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  • An unopposed application for amendment may nonetheless attract costs in favour of the respondents, costs following the event and subject to the court's discretion under the proviso to section 27(1) of the Civil Procedure Act
  • Amendments to pleadings are allowed for the purpose of determining the real question in controversy between the parties, provided no prejudice is suffered

Court orders

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  1. 1.The application is allowed in terms of order No. 2 sought therein, permitting the plaintiffs to amend the originating summons dated 8th November 2016 and substitute it with an amended plaint as per the draft annexed
  2. 2.The amended pleading be filed and served within 14 days from the date of the ruling
  3. 3.The plaintiffs/applicants to bear the costs of the application in the sum of Kshs 4,000/= payable within 14 days from the date of the ruling

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 159(2)(b) of the Constitution of Kenya, 2010; sections 3 and 19 of the Environment and Land Court Act, 2015; sections 1A, 3 and 3A of the Civil Procedure Act, Chapter 21 Laws of Kenya; Order 8 Rule 3(1) of the Civil Procedure Rules, 2010

Relief refused

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Costs of the application to be costs in the cause (order c of the notice of motion)

The court instead fixed liquidated costs payable by the plaintiffs to the respondents, since the application was unopposed save for costs

p. 2

Costs

The plaintiffs/applicants to bear costs of the application in the sum of Kshs 4,000/= payable within 14 days from the date of the ruling

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.

In the result, the application is meritorious. The same is hereby allowed in terms of order No. 2 sought therein. The amended pleading be filed and served within the next 14 days from this date.
p. 2Final orders - amendment allowed
The plaintifis/applicants to bear costs of the application in the sum of Kshs 4,000/= payable within the next 14 days from this date.
p. 2Final orders - costs
The amendment is made for the purpose of determining the real question in controversy between the parties.
p. 2Purpose of amendments to pleadings

Issues in the judgment

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minor

The judgment contains typographical errors: 'plaintifis' for 'plaintiffs', 'sufiered' for 'suffered', 'secretion' (apparently for 'discretion'), and 'ofiered' for 'offered'

minor

The Environment and Land Court Act is inconsistently cited as both '2015' and '(2011)' in the same sentence

minor

The case number of the suit and the names of the parties are not stated anywhere in the judgment

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, "Oreng & another v Ouma (Sued as the legal representative of Pitalis Ogola Ombewa) & 2 others (Environment & Land Case 42 of 2021) [2024] KEELC 782 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/782/eng@2024-02-19

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