Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNairobi ELC Case Number 325 of 2009 (consolidated with Nairobi ELC Case Number 735 of 2007, the Lead File)· [2018] KEELC 400 (KLR)

Esther Mukulu Mutuku (suing through Mutuku Manthi v Rahab M’Kiama (t/a Metra Investments) & 2 others [2018] KEELC 400 (KLR)

Environment and Land Court
18 December 2018
BEB M Eboso
460 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This judgment disposes of a notice of motion dated 5/4/2017 by Rahab M'Kiama and Metra Investments Limited, the applicants, seeking to strike out an amended plaint dated 20/3/2017 and the entire suit in Nairobi ELC Case Number 325 of 2009, a cause consolidated with Nairobi ELC Case Number 735 of 2007 (the Lead File) by an order of Gitumbi J of 3/12/2013. The applicants argued that there was no substantive order on the court file granting leave to amend, that the order relied on was obtained through misrepresentation of facts, and that the amended plaint lacked a verifying affidavit. The only amendment in the impugned plaint was the substitution of Esther Mukulu Mutuku for the deceased Joseph Mutuku Mwanthi. The court perused the record and confirmed that on 22/5/2015 Gitumbi J rendered a ruling in the lead file allowing that substitution, and held that once substitution was allowed the plaint had to be amended to reflect the new plaintiff, with the amendments falling within the purview of that order. On the verifying affidavit point, the court held that Order 8 of the Civil Procedure Rules does not make verifying affidavits mandatory accompaniments to amended plaints. The application was found to have no merit and was declined, with no order as to costs.

Key legal issues

#
01

Whether the amended plaint required a fresh order of leave to amend

Holding

The amendments were properly effected pursuant to the court's earlier order of 22/5/2015 allowing substitution; no separate leave was needed

Reasoning

The court perused the record and confirmed that on 22/5/2015 Gitumbi J rendered a ruling in the lead file allowing substitution of Esther Mukulu Mutuku for Joseph Mutuku Mwanthi. The only amendment in the impugned plaint was that substitution. It was logical that the plaint be amended to reflect the new plaintiff once substitution was allowed, and the amendments fell within the purview of that order.

p. 1
02

Whether an amended plaint must be accompanied by a verifying affidavit

Holding

No; a verifying affidavit is not a mandatory accompanying document for an amended plaint

Reasoning

The applicants contended that the amended plaint was defective for want of a verifying affidavit. The court held that Order 8 of the Civil Procedure Rules, which governs amendments to pleadings, does not make verifying affidavits mandatory documents to accompany amended plaints, and therefore the plea failed.

p. 1

Legal principles established

#
  • Where a court allows substitution of a party, the plaint may be amended to reflect the name of the new plaintiff within the purview of that order
  • Order 8 of the Civil Procedure Rules does not require a verifying affidavit to accompany an amended plaint

Court orders

#
  1. 1.The notice of motion dated 5/4/2017 is declined for lack of merit
  2. 2.No order as to costs of the application

Authorities

#

Legislation

  • Civil Procedure RulesOrder 8
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the consolidated causes; motion under Order 8 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Esther Mukulu Mutuku (suing through Mutuku Manthi v Rahab M’Kiama (t/a Metra Investments) & 2 others [2018] KEELC 400 (KLR)", Case Analysis (2018). Nairobi ELC Case Number 325 of 2009 (consolidated with Nairobi ELC Case Number 735 of 2007, the Lead File). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/400/eng@2018-12-18

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