Mary Wambui Muriithi v Margaret Wanjiku Kariuki [2016] KEELC 610 (KLR)
The bottom line
#A Kenyan land court refused to review a 2008 ruling but let the defendant amend her defence and counter-claim, warning against filing duplicate applications.
What this practically means
#Executive summary
#Key legal issues
#Abuse of the process of the court
The application was an abuse of process because two previous similar applications (filed 17/12/2009 and 11/3/2016) were still pending and were not withdrawn before the current one was filed.
The court examined the pleadings and found two earlier applications seeking the same amendment still pending in the court file. Filing the present application without withdrawing them was found to constitute an abuse of court process, since a litigant cannot keep filing similar applications which are left on the court file.
Whether the ruling of 10/12/2008 was reviewable under Order 45
No ground for review was disclosed. The applicant's complaint was an alleged error by the trial judge in directing formal proof despite a defence on record; an error is a ground of appeal, not review.
The court found that the trial judge's direction that the matter proceed by formal proof was erroneous because a defence had been filed on 15/8/2006 and only the amended defence and counter-claim were struck out. However, Order 45 grounds were not made out: an erroneous finding cannot be a ground for review, only for appeal, so review of the 10/12/2008 ruling was refused.
Whether leave to amend the defence and counter-claim should be granted
Amendment was allowed to move the case forward, the amendment of the plaint having rendered the 10/12/2008 ruling superfluous and the applicant having failed to take up the fresh opportunity to amend.
The respondent's subsequent unopposed amendment of the plaint, served on 12/5/2010, gave the applicant a fresh opportunity to amend her defence and counter-claim, rendering the 2008 ruling superfluous. The applicant failed to act. Noting the case had been pending due to inaction and had been set for dismissal for want of prosecution, the court allowed amendment to ensure the case moved forward.
Legal principles established
#- A litigant cannot file successive similar applications while previous ones remain pending in the court file; doing so is an abuse of the process of the court.
- An erroneous finding by a judge is a ground for appeal, not a ground for review under Order 45 of the Civil Procedure Rules.
- A suit cannot proceed by way of formal proof where the defendant has already filed a defence; only a party against whom no defence is filed may prove its claim formally.
Court orders
#- 1.Prayer for review of the ruling of 10/12/2008 refused
- 2.Leave granted to amend the defence to include a counter-claim
- 3.Amended defence and counter-claim to be filed and served within seven days, failing which the application shall stand dismissed without further recourse to court
- Jurisdiction invoked
- Original jurisdiction; review under Order 45 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wambui Muriithi v Margaret Wanjiku Kariuki [2016] KEELC 610 (KLR)", Case Analysis (2016). Notice of Motion dated 26/4/2016 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/610/eng@2016-08-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.