Christopher Jakoya Asika & Benjamin Odera Asika v Charles Opondo Oyenga & Magadalina Apondi [2014] KEHC 1795 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 76 OF 2014 (FORMERLY HCC. 60 OF 2010)

1.  CHRISTOPHER  JAKOYA ASIKA ]

2.  BENJAMIN ODERA ASIKA           ] ……………PLAINTIFFS.

=VERSUS=

CHARLES OPONDO OYENGA]

MAGADALINA APONDI           ] ……………….....DEFENDANTS.

R U L I N G.

CHARLES OPONDO AYENGA andMAGADALINA OPONDO,hereinafter  referred to as the 1st and 2nd  Applicants through M/S.  Omondi & co. Advocates, filed the notice of motion dated 27th August, 2014 against  CHRISTOPHER  JAKOYA ASIKA and BENJAMIN  ODERA ASIKA, hereinafter  referred to as 1st and 2nd Respondents,  for leave to amend  their written statement of defence  and include a counter claim.

The application is based on four grounds marked (i) to (iv) and the affidavit of the 1st Applicant  sworn on 27th August, 2014.

The Respondents opposed the application through the replying  affidavit of the 1st Respondent sworn on 13th October, 2014 and filed through M/S. Wanyama  & co. Advocates.

The court heard the submissions  of Mr. Omondi and Wanyama advocates for the Applicants and Respondents  when the application came up for hearing on 14th October, 2014. The court has carefully considered the grounds on the application, submissions  of both counsel, the  supporting and replying affidavits  and come to the following findings:

1.   That under  Order 8 Rule 3  of the Civil Procedure  Rules, as read with section 3 and 3A of the Civil Procedure  Act,  this court has jurisdiction to allow any party at any stage  of proceedings upon such terms as to costs or otherwise  as may  be just, to amend  the pleadings. The leave sought by the Applicants is to amend the statement of defence which was filed  by the Applicants in person. The  amended statement  of defence will also have a counter claim  in the nature  of a claim to a portion of the suit land, Marachi/Esikoma/1309, from which  the Respondents seeks to have them evicted.

2.   That  from the materials availed to the court, the  application for leave to amend the statement  of defence  and include a counter claim  is not made in bad faith.  It will also not prejudice any of the parties but will allow all the issues between the parties  over the suit property  to be dealt with in one forum.

3.   That  for reasons  set out  above the application dated 27th  August, 2014  is allowed in terms of prayer (a)  with costs to the Respondent in any event.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON  13TH DAY OF NOVEMBER, 2014

IN THE PRESENCE OF………………1st PLAINTIFF/APPLICANT

N/A……… 2ND PLAINTIFF/APPLICANT

N/A…………1ST DEFENDANT/RESPONDENT

N/A ………..2ND DEFENDANT/RESPONDENT

MR. OMONDI COUNSEL FOR PLAINTIFF/  RESPONDENT.

JUDGE.