Nuru Mohamed Omar & Another v Suheel Ahmed Nazir [2018] KEELC 299 (KLR)
The bottom line
#A Kenyan court struck out a lawsuit amendment application because it tried to amend a document that never existed and named people who were not yet parties.
What this practically means
#Executive summary
#Key legal issues
#Sequencing of amendment applications
The Second Application was incompetent because it premised a further amendment on an amended Plaint that never came into existence, the First Application having never been prosecuted
The record showed that after filing the First Application in 2014, the matter was adjourned several times, taken off the hearing list on 23rd November 2014, and transferred to Malindi, where it was never prosecuted. Consequently no amendment was ever made to the Plaint. The Second Application sought to further amend a non-existent pleading, an entirely erroneous premise that could not support the relief sought.
Citation of non-parties in the application
The draft Further Amended Plaint wrongly treated Said Baya Mwabaya and Fidelity Commercial Bank Ltd as parties, rendering the Second Application misconceived and incompetent
From the court record, neither Said Baya Mwabaya (proposed substitute for the deceased 1st Plaintiff) nor Fidelity Commercial Bank Ltd (proposed 2nd Defendant) had been joined to the proceedings. The draft pleading attached to the Second Application proceeded on the false assumption that they were already parties. To that extent the application could not stand and had to be struck out, with costs to the Defendant.
Abatement of the deceased Plaintiff's claim
The Defendant raised a preliminary objection that the 1st Plaintiff's claim had abated on death with no order reviving it; the court's disposition proceeded on the incompetence of the Second Application
The Defendant's Preliminary Objection dated 28th March 2017 contended that the claim by Nur Mohamed Omar, who died on 23rd September 2016, had abated and that there was no order reviving it, making the substitution application an abuse of process. The court struck out the Second Application on its own identified defects (non-existent amended Plaint and non-party citation) and did not pronounce a separate determination on the abatement objection.
Legal principles established
#- A party cannot seek leave to 'further amend' a pleading that was never amended, as the foundation for such an application does not exist
- An application that cites as parties persons not yet joined to the suit is misconceived and incompetent
Court orders
#- 1.The Second Application dated 18th January 2017 is struck out with costs to the Defendant
- 2.The First Application dated 23rd April 2014 was not disposed of on the merits in this judgment (the court noted it was never prosecuted)
- Jurisdiction invoked
- Original civil jurisdiction of the High Court (suit transferred from Mombasa to Malindi); specific provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nuru Mohamed Omar & Another v Suheel Ahmed Nazir [2018] KEELC 299 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/299/eng@2018-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.