Shashikant K. Patel v Thomas Mark Mumo Maingey [2017] KEELC 1686 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 124 OF 2015

SHASHIKANT K. PATEL..............................................PLAINTIFF

VERSUS

THOMAS MARK MUMO MAINGEY.........................DEFENDANT

RULING

1. In the Notice of Motion dated 2nd February, 2017, the Plaintiff is seeking for the following orders:

a. That the Honourable Court be pleased to grant leave to the Plaintiff/Applicant to amend his Plaint in terms of the annexed draft amended Plaint and the Defendant be granted corresponding leave to amend his statement of Defence if need be.

b. That the draft Plaint attached to this Application be deemed as duly filed and served.

2. The Application is premised on the grounds that the Plaintiff has sued the Defendant for the transfer of 17. 5 acres of land that he purchased from the Defendant; that during typing, the secretary erroneously typed 15 acres instead of 17. 5 acres and that it would appear from the Defence that the land has been sub-divided further.

3. It is the Plaintiff’s case that he was not aware of the sub-division of the land and all along believed that the suit land was L.R. No. 1338/R.

4. In response, the Defendant deponed that the Agreement of 9th July, 2002 was contingent upon fulfillment of certain conditions; that on 15th July, 2003, it was agreed that the transaction could not be completed due to the consent that was filed stipulating that the suit land could only be leased and that they entered into another agreement of 1st September, 2005 for the sale of 15 acres.

5. According to the Defendant, the prayer to amend the Plaint is an afterthought having been filed after two (2) years.

6. The parties filed brief submissions which I have considered.

7. The Plaintiff’s case is that the Sale Agreement between him and the Defendant was in respect to land known as L.R No. 1338/R measuring 17. 5 acres.  However, the Plaintiff inadvertedly showed that the land measures 15 acres.

8. The Plaintiff has further stated that he has since learnt that the suit land is now being referred to as L.R No. 1338/111 after L.R. No. 1338/R was sub-divided by the Defendant.

9. Order 1 Rule 10(2) of the Civil Procedure Rules provides that the court may at any stage of the proceedings allow amendments to be done to pleadings.

10. In the case of Eastern Bakery vs. Castellino (1958) E.A 461, the court held that amendments to pleadings sought before the hearing should be freely allowed if they are made without injustice to the other party, and if there is no prejudice that cannot be compensated by cost.

11. The Plaintiff simply wants to cite the correct parcel number after the alleged sub-division of L.R. No. 1338/R.

12. The Defendant is at liberty to deny the averments in the amended Plaint by filing an amended Defence.

13. Indeed, whatever averments the Plaintiff is seeking to introduce in the amendments, the Plaintiff will have to prove them at trial.

14. In the circumstances, and considering that the proposed amendments do not purport to raise a new cause of action, I do not see the prejudice that the Defendant shall suffer if the amendments are allowed.

15. For those reasons, I allow the Application dated 2nd February, 2017 as prayed.  The amended Plaint to be filed and served within fourteen (14) days from the date of this Ruling.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 22ND DAY OF SEPTEMBER, 2017.

O. A. ANGOTE

JUDGE