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ELCAllowedNot stated in judgment· [2014] KEELC 317 (KLR)

James Rotich & 4 others v Honourable David Kangogo & 5 others [2014] KEELC 317 (KLR)

Environment and Land Court
10 July 2014
MSMunyao Sila
513 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed 749 Embobut Forest squatters to join a compensation petition, confirming petitions are amended under the 2013 Constitutional Rules, not Civil Procedure Rules.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Eldoret, delivered by Justice Munyao Sila on 10 July 2014, dealt with an application dated 30 June 2014 in a constitutional petition filed under Articles 2, 22, 23, 79, 156, 161(1), 173 and 226 of the Constitution. The petition was brought by five persons suing on behalf of 'Victims of Landslide Staying in Embobut Forest', who allege that a Government task force identified squatters in Embobut Forest for compensation to enable them to move out of the forest, but that their names were removed from the list of persons to be compensated; they sought an order that their names be maintained in the compensation list. The application sought leave to amend the petition by adding 749 persons described as genuine qualified squatters of Embobut Forest as petitioners. Although the application was brought under Sections 3 and 3A of the Civil Procedure Act and Order 1 Rule 10(1) and (4) and Order 8 Rule 3 of the Civil Procedure Rules, the court held that a constitutional petition is governed by the Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013, and elected to consider the application under the correct rules notwithstanding the defect. Finding that Rules 5 and 18 of the 2013 Rules permit amendment of a petition, including adding parties, and noting that the application was unopposed, the court allowed the amendment, directed that the amended petition be filed and served within 7 days, and made no orders as to costs. The underlying petition remains for determination.

Key legal issues

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01

Correct procedural framework for amending a constitutional petition

Holding

The Civil Procedure Act and Civil Procedure Rules do not apply to a constitutional petition; the applicable rules are the Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013, under which amendments, including addition of parties, are permitted. The court treated the application as filed under the correct rules despite the defect.

Reasoning

The application cited Sections 3 and 3A of the Civil Procedure Act and Order 1 Rule 10(1) and (4) and Order 8 Rule 3 of the Civil Procedure Rules. The judge observed the petition is governed by the 2013 Constitutional Rules, not the Civil Procedure Rules. Rather than strike out the defective application, the court considered it on merit under the proper rules, noting that Rules 5 and 18 of the 2013 Rules permit amendments including the addition of parties.

p. 2
02

Whether the application to add 749 petitioners should be allowed

Holding

The application was unopposed and the court saw no reason to decline it; the amendment adding 749 persons as petitioners was allowed.

Reasoning

The application sought to add 749 persons described as the genuine qualified squatters of Embobut Forest as petitioners. The respondents did not oppose the application, and the court found no reason to refuse it, allowing the amendment and directing the amended petition to be filed and served within 7 days.

p. 2

Legal principles established

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  • An application to amend a constitutional petition is properly brought under the Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013, not the Civil Procedure Rules
  • The court will consider an application on merit under the correct rules despite a defect in the provisions cited
  • The 2013 Constitutional Rules permit amendment of a petition, including the addition of parties

Court orders

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  1. 1.The application to amend the petition is allowed
  2. 2.The 749 persons named in the application are added as petitioners
  3. 3.The amended petition be filed and served within 7 days
  4. 4.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 22, 23, 79, 156, 161(1), 173, 226
  • Civil Procedure ActSections 3, 3A
  • Civil Procedure RulesOrder 1 Rule 10(1) and (4); Order 8 Rule 3
  • The Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013Rules 5, 18
Jurisdiction invoked
Articles 2, 22, 23, 79, 156, 161(1), 173 and 226 of the Constitution of Kenya, 2010

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, "James Rotich & 4 others v Honourable David Kangogo & 5 others [2014] KEELC 317 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/317/eng@2014-07-10

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