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ELCDismissedNot stated in judgment (application dated 10/3/2017)· [2017] KEELC 816 (KLR)

Lowkwawi Lorimowi & 29 others v Tullow Oil (K) Ltd & 3 others [2017] KEELC 816 (KLR)

High Court of Kenya
16 October 2017
MNMwangi Njoroge
485 words in judgment
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The bottom line

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The High Court in Kitale refused a last-minute attempt to swap the legal basis of a case, holding that which statute you rely on is the substance of your case, not a technicality.

What this practically means

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Executive summary

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This short ruling by Mwangi Njoroge J at Kitale, delivered on 16 October 2017, deals with an oral application made by Mr Bosek, counsel for the Petitioners, on the morning fixed for highlighting submissions. Counsel sought to orally amend the petition documents by substituting the Petroleum (Exploration and Production) Act Cap 308 wherever the Mining Act 2016 had been mentioned. He argued that the error had been identified by the time of filing submissions, that the correct Act had already been cited in those submissions, and that no formal application was necessary. Mr Eredi, for the 2nd Respondent and Interested Parties (also holding brief for Mr Wetangula for the 1st Respondent), opposed, contending the application went to the root of the defence and was made only after the respondents' submissions had revealed the correct applicable statute. The court acknowledged Article 159(2)(d) of the Constitution and its preference for substantive justice over procedural technicalities, but held that reliance on one statute rather than another is a matter of substance, not procedure. The Petitioners had taken inordinately long to seek the amendment, and allowing it would ambush adversaries who had responded on the pleadings as filed. The oral amendment application was accordingly declined, and the court directed that counsel be heard on the substance based on the existing pleadings. No costs order was made.

Key legal issues

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01

Whether the substitution of one statute for another in pleadings is a mere procedural technicality that can be cured orally under Article 159(2)(d)

Holding

No - the amendment was declined because it goes to the substance of the case and was brought inordinately late

Reasoning

The court accepted that Article 159(2)(d) favours substantive justice over procedural technicalities, but held that reliance on one statute rather than another concerns the substance and strength of a party's case, not procedure. The applicants had taken inordinately long to seek the amendment, and allowing it on the day of highlighting submissions would mislead and ambush the respondents and interested parties, who had responded on the pleadings as filed.

p. 3

Legal principles established

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  • Reliance on a particular statute is a matter of substance rather than procedure, and a party cannot be permitted to amend pleadings to change the statutory basis of its case on the day of hearing
  • A party who has had ample time to effect an appropriate amendment should not be allowed to ambush their adversary on the day of the hearing

Court orders

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  1. 1.The oral application to amend the pleadings/documents is declined

Authorities

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Legislation

  • Mining Act2016
  • Petroleum (Exploration and Production) ActCap 308
  • Constitution of KenyaArticle 159(2)(d)
Jurisdiction invoked
Original petition before the High Court; ruling on interlocutory application dated 10/3/2017

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, "Lowkwawi Lorimowi & 29 others v Tullow Oil (K) Ltd & 3 others [2017] KEELC 816 (KLR)", Case Analysis (2017). Not stated in judgment (application dated 10/3/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/816/eng@2017-10-16

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