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ELCPartially AllowedNot stated in the excerpt (Plaint filed 13th February 2015)· [2017] KEELC 3825 (KLR)

SOY Developers Limited v Kenagri Products Limitimed & 3 others [2017] KEELC 3825 (KLR)

High Court of Kenya
17 March 2017
LGL. Gacheru
3,675 words in judgment
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The bottom line

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A Kenyan court struck out an amended court application filed without permission, confirming that procedure rules must be followed even when Article 159 favours hearing all cases.

What this practically means

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Executive summary

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This ruling by the High Court (L. Gacheru J) determined two interlocutory applications by A.S.L Ltd, the 2nd Defendant in a land dispute in which Soy Developers Ltd sought injunctions concerning LR No.209/11151, including rectification of the Land Register. The first application, a Notice of Intention dated 15th July 2015, sought the cross-examination of Sammy Boit, the Plaintiff's Director who swore the supporting affidavits to the Plaintiff's Notices of Motion, on grounds including hearsay, perjury allegations and non-compliance with Order 19 Rule 3(1). The second, a Notice of Motion dated 3rd August 2015, sought to disallow the Plaintiff's amendments to its Notice of Motion of 16th February 2015 effected on 31st March 2015, by which the Plaintiff added Kenagri Products Ltd as a party and replaced the narrative of a lost title with an account of a 1991 sale agreement to Kenagri Products Ltd. The court held that a Notice of Motion is not a pleading and may only be amended with leave of court or consent; the Plaintiff amended without leave, introducing a new and inconsistent cause of action at variance with the Plaint, and did so after a limitation objection was raised, indicating bad faith. The court struck out and expunged the Amended Notice of Motion, allowed the application dated 3rd August 2015 entirely with costs in the cause, and declined the cross-examination application since no basis remained once the amended application was struck out and cross-examination risked a mini-trial contrary to the overriding objective. The Plaintiff was directed to set down the original Notice of Motion for hearing within 30 days. Leave to appeal was granted.

Key legal issues

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01

Whether a Notice of Motion can be amended without leave of the court

Holding

A Notice of Motion is not a pleading within Order 2 and Order 8 Rule 1; it may be amended only with leave of the court or consent. The Plaintiff amended without leave, introducing a new party and a new, inconsistent cause of action.

Reasoning

The court found that a Notice of Motion is not a pleading as envisaged by Order 2 and Order 8 Rule 1 of the Civil Procedure Rules, relying on George Kamau Kimani and Narati Gihir. Amendments to pleadings are freely allowed before hearing if no injustice results, but the discretion must be exercised judicially. The unauthorised amendment changed the narrative, added a party and introduced a new and inconsistent cause of action at variance with the Plaint, and was filed only after a limitation preliminary objection, indicating bad faith and abuse of process.

p. 6
02

Whether the deponent of supporting affidavits should be produced for cross-examination

Holding

The application for cross-examination was declined. With the Amended Notice of Motion struck out, only one affidavit consistent with the Plaint remained, with no inconsistency requiring resolution, and no proper basis was laid for cross-examination.

Reasoning

Order 19 Rule 2 grants the court power to order a deponent's attendance, but the discretion is guided by the overriding objective in Sections 1A and 1B of the Civil Procedure Act. Summoning the deponent risked a mini-trial and would not serve expeditious disposal. The court followed the principle that cross-examination is allowed only after a proper basis is laid and where facts are disputed, and found none.

p. 7

Legal principles established

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  • A Notice of Motion is not a pleading and may only be amended with leave of the court or consent
  • Article 159 of the Constitution does not displace compliance with rules of procedure

Court orders

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  1. 1.The Amended Notice of Motion dated 31st March 2015 be disallowed and struck out and expunged from the court record
  2. 2.The Notice of Motion dated 3rd August 2015 is allowed entirely with costs being in the cause
  3. 3.The Notice of Intention to Cross Examine dated 15th July 2015 is declined/disallowed
  4. 4.The Plaintiff to set down the Notice of Motion dated 16th February 2015 for hearing within 30 days from the date of the Ruling
  5. 5.Leave to appeal granted
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 8 and Order 19 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, "SOY Developers Limited v Kenagri Products Limitimed & 3 others [2017] KEELC 3825 (KLR)", Case Analysis (2017). Not stated in the excerpt (Plaint filed 13th February 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3825/eng@2017-03-17

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