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ELCAllowedNot stated in the judgment· [2016] KEELC 674 (KLR)

Wanjiru Muiruri Nduati v Erastus Ndungu Thungu [2016] KEELC 674 (KLR)

High Court of Kenya
12 July 2016
LWL N Waithaka
1,540 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed that a notice of motion can be amended like any other court document, so technical objections won't easily block genuine case corrections.

What this practically means

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Executive summary

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The plaintiff, Wanjiru Muiri Nduati, moved the court by notice of motion dated 9th February 2016 under Sections 1A, 1B, 3A and 100 of the Civil Procedure Act and Orders 8 Rule 3 & 5 and Order 51 of the Civil Procedure Rules, seeking leave to amend the plaint filed on 7th August 2015 and the notice of motion filed on 23rd October 2015. She explained that documents needed in support of her case had since been obtained and that the amendments were necessary to bring out the real issues in controversy, and deposed that the respondent would suffer no prejudice. The respondent filed grounds of opposition contending that an application cannot be amended, that the application was unsupported, and that allowing it would embarrass the court. At the hearing, the respondent opposed only the amendment of the notice of motion, arguing that prayer 4 of the intended amended motion was final in nature and could dispose of the suit, and that a notice of motion was not a pleading capable of amendment; he further contended that the supporting affidavit offended Section 9 of the Oaths and Statutory Declarations Act. The applicant relied on Echaria v Echaria, Fredrick Mwangi Nyaga v Garam Investments and Samwel Barkoiyet Kangogo. Waithaka J held that a notice of motion is part of the proceedings of a suit and that the court has power under Sections 3A, 100 and Order 8 Rule 5 to amend it. The court found that an existing prayer in the motion already had the potential of preliminarily determining the suit, and that such orders can issue in special circumstances after parties are heard, so allowing the amendment would embarrass neither the court nor prejudice the respondent. The court distinguished the Garam Investments case on the marking of annexures and allowed the amendment as per annexture WMC-2, awarding the respondent the costs of the application.

Key legal issues

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01

Whether a notice of motion can be amended

Holding

The court has power under Sections 3A, 100 and Order 8 Rule 5 of the Civil Procedure Act and Rules to amend a notice of motion, associating itself with the decisions of Havelock J and Omondi J

Reasoning

The court associated itself with Havelock J's holding in Fredrick Mwangi Nyaga v Garam Investments that a notice of motion is part of the proceedings of a suit, and with Omondi J's exercise of the wide discretion under Section 3A to ensure the ends of justice are met. It therefore concluded that an application can be amended under Sections 3A, 100 and Order 8 Rule 5.

p. 3
02

Whether the amendment should be denied because a prayer in the amended motion was final in nature

Holding

The amendment would not embarrass the court or occasion prejudice, since a final prayer can be granted in special circumstances after parties are heard

Reasoning

The court noted that an existing prayer in the notice of motion already had the potential of preliminarily determining the suit, so the impugned amendment added nothing novel. Since orders with determinative potential can issue in special circumstances after parties present their cases, allowing the amendment would neither embarrass the court nor occasion uncompensable prejudice.

p. 3
03

Whether the supporting affidavit offended Section 9 of the Oaths and Statutory Declarations Act

Holding

It did not, because unlike in the Garam Investments case, the draft amended plaint and notice of motion were marked as one document

Reasoning

Distinguishing Fredrick Mwangi Nyaga v Garam Investments, where the annexure contravening Rule 9 of the Oaths and Statutory Declaration Rules was unmarked, the court found that here the draft amended plaint and draft amended notice of motion were rubbed together and marked WMC-2, so neither was unmarked and the objection failed.

p. 3

Legal principles established

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  • A notice of motion is part of the proceedings of a suit and may be amended under Order 8 Rule 5 and Section 100 of the Civil Procedure Act
  • Orders with the potential of determining a suit can in special circumstances be granted, provided parties are given an opportunity to be heard on them

Court orders

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  1. 1.Leave granted to amend the plaint filed on 7th August, 2015 and the notice of motion filed on 23rd October, 2015, the amendment to be as per annexture WMC-2 annexed to the affidavit sworn on 9th February, 2016
  2. 2.The respondent to have the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 100
  • Civil Procedure RulesOrder 8 Rules 3 & 5; Order 51
  • Oaths and Statutory Declarations Act, Cap 15 Laws of KenyaSection 9
  • Oaths and Statutory Declarations RulesRule 9
  • Court of Appeal RulesRule 42(1) (as referenced in Echaria v Echaria)

Cases cited (3)

  • Peter M. Echaria v. Priscilla N. Echaria
    (1998) eKLR
  • Fredrick Mwangi Nyaga v. Garam Investments & Another
    (2013) eKLR
  • Samwel Barkoiyet Kangogo & 3 others v. Daniel Ndung'u
    (2009) eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 100 of the Civil Procedure Act; Orders 8 Rule 3 & 5 and Order 51 of the Civil Procedure Rules

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, "Wanjiru Muiruri Nduati v Erastus Ndungu Thungu [2016] KEELC 674 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/674/eng@2016-07-12

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