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ELCDismissedNot stated in judgment

Onyuna v Anyango (Enviromental and Land Originating Summons 63 of 2021) [2024] KEELC 6390 (KLR)

Environment and Land Court
24 September 2024
GOG. M. A. Ongondo
2,097 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused a landowner's late attempt to swap his adverse possession claim for a different legal case filed six years earlier.

What this practically means

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Executive summary

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The applicant, Boniface Abong'o Onyuna, moved the Environment and Land Court at Homa Bay by Notice of Motion dated 14th February 2024, brought under Order 51 Rule 1 and Order 8 of the Civil Procedure Rules, 2010, seeking leave to amend his originating summons dated 12th September 2018 and substitute it with a plaint. He had originally sued for registration as proprietor of the suit land, Lambwe East/112, by adverse possession, but on advice of counsel later concluded that no claim for adverse possession arose. The respondent opposed, contending the application was an afterthought that would introduce a new and inconsistent cause of action in a part-heard matter, and would cause delay and prejudice. Both sides filed written submissions with authorities. The court, per G. M. A. Ongondo, J, summarised the settled principles for amendment of pleadings drawn from the Institute for Social Accountability and Elijah Kipngeno Arap Bii decisions: an amendment must be made timeously, must not introduce a new or inconsistent cause of action, must not affect vested rights, and must not prejudice the other side. The court held the delay of over five years inordinate, noting the applicant (PW1) had already testified on 7th June 2023 relying on the originating summons. The explanation, including changing lake water levels, did not suffice. The draft plaint introduced a new cause of action that would change the action into one of a substantially different character, occasioning injustice to the respondent. The application was dismissed with costs to the applicant. Delivered at Homa Bay on 24th September 2024.

Questions the Court framed

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

  1. 1.Whether the applicant is deserving of leave to amend the originating summons dated 12th September 2018 and substitute the same with an amended plaint as per the draft plaint annexed thereto.
  2. 2.Who should bear the costs of this application?

Key legal issues

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01

Whether leave should be granted to substitute an originating summons for adverse possession with a plaint

Holding

Leave refused; the application is an afterthought, the delay is inordinate, and the draft plaint introduces a new cause of action.

Reasoning

The suit was filed in 2018 as an originating summons for adverse possession, but the amendment was sought only in February 2024 after PW1 had testified. The court held the delay inordinate and the explanation insufficient, and that substituting a plaint would introduce a new case of a substantially different character, causing injustice to the respondent.

p. 4
02

Whether the delay was adequately explained

Holding

The delay was inordinate and the explanation, including reliance on changing lake water levels, did not suffice.

Reasoning

The court found that although the delay was attributed to factors such as changing climate and water levels on the lake shore, the delay from 2018 to 2024 was inordinate and did not warrant exercise of the court's discretion, citing Article 159(2)(b) of the Constitution and the Salat decision.

p. 4
03

Costs of the application

Holding

Costs to be borne by the applicant.

Reasoning

Having found no merit in the application, the court exercised its discretion to award costs of the application against the applicant, despite the applicant's offer to pay any costs as directed.

p. 4

Legal principles established

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  • Amendments should be made timeously and should not introduce a new or inconsistent cause of action; an amendment that introduces a new case changing the action into one of a substantially different character should be refused.

Court orders

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  1. 1.The applicant's application dated 14th February 2024 is dismissed
  2. 2.Costs of the application to be borne by the applicant

The bench

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

GO
majority

Wrote the judgment

Jurisdiction invoked
Order 51 Rule 1 as read with Order 8 Rule 3(1), (2), (5) and Rules 4 and 5 of the Civil Procedure Rules, 2010; Section 100 of the Civil Procedure Act, Chapter 21 Laws of Kenya

Relief refused

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Leave to amend the originating summons dated 12th September 2018 and substitute it with an amended plaint

Delay was inordinate, the matter is part heard, the draft plaint introduces a new cause of action which would change the action into one of a substantially different character and occasion injustice to the respondent

p. 4

Costs

Costs of this application to be borne by the applicant.

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.

To that end, I find no merit in the applicant's application dated 14th February, 2024. The same is hereby dismissed.
p. 4Disposition - dismissal of amendment application
Costs of this application to be borne by the applicant.
p. 4Costs order
it is my considered view that the delay is inordinate for which the court's discretion ought not to be exercised.
p. 4Inordinate delay in seeking amendment
Clearly, the proposed amendments introduce a new case and would change the action into one of a substantially difierent character; see Elijah Kipngeno Arap Bii case (supra).
p. 4New cause of action - amendment refused
The court will normally allow parties to make such amendments as may be necessary for determining the real questions in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, no new or inconsistent cause of action is introduced, and no vested interest or accrued legal right is afiected and that the amendment can be allowed without an injustice to the other side.
p. 3Principles governing amendment of pleadings (as cited)

Issues in the judgment

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minor

The respondent is never named in the judgment; parties are referred to only as 'the applicant' and 'the respondent' and the case number and neutral citation are not stated in the text provided.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Onyuna v Anyango (Enviromental and Land Originating Summons 63 of 2021) [2024] KEELC 6390 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6390/eng@2024-09-24

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