Susan Gillian Thomasin Magor v Kenya Electricity Transmission Company Limited & 3 others [2016] KEELC 121 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a notice of motion is amendable under the Mutunga Rules
Yes. Rule 18 confers discretion on the court to allow amendment of pleadings at any stage before conclusion of the trial, provided the amendment causes no injustice or prejudice that cannot be compensated by costs.
The court adopted Onguto J's exposition in Mombasa Cement Limited v Speaker of National Assembly, holding that Rule 18 permits amendment at any stage of proceedings so long as the trial is not concluded, that the discretion is to be exercised judiciously, and that amendments should be freely allowed absent undue delay, undue prejudice, or injustice, with compensable prejudice addressed by an award of costs.
Whether the applicant's unilateral amendment without leave should be regularised
Yes. Although the applicant amended without leave, the court allowed the alternative prayer to regularise the amendment because any prejudice to the respondent was compensable by costs.
The applicant had amended its notice of motion without leave contrary to Rule 18 and then sought to regularise. The court weighed the prejudice to the respondent in terms of delay and costs of addressing the new grounds, found it compensable by an award of costs, and allowed the alternative prayer rather than striking out the amended notice of motion.
Legal principles established
#- Under Rule 18 of the Mutunga Rules the court has discretion to allow amendment of pleadings, with leave, at any stage of the proceedings provided no injustice or prejudice is occasioned to the other party, and any prejudice may be compensated by an award of costs.
Court orders
#- 1.Leave granted to regularise the amended notice of motion dated 8th July, 2016 (application allowed in terms of the alternative prayer)
- 2.Costs of defending the application awarded to the petitioner/respondent
- 3.Respondents to serve responses and/or submissions to the amended notice of motion within seven (7) days of service
- 4.Mention on 22nd November, 2016 to confirm compliance and issue further directions
- Jurisdiction invoked
- Original constitutional petition jurisdiction under the Constitution of Kenya, 2010, with procedure governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules), Rule 18
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Susan Gillian Thomasin Magor v Kenya Electricity Transmission Company Limited & 3 others [2016] KEELC 121 (KLR)", Case Analysis (2016). Petition No. 12 of 2016 (applicant's notice of motion dated 28th July, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/121/eng@2016-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.