Halima Ali Sagara v National Land Commission & another [2018] KEELC 1979 (KLR)

Environment and Land Court

30 July 2018

ECE. C. Cherono

741 words in judgment

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The bottom line

Kenya's Environment and Land Court allowed a petitioner to amend her petition, confirming that courts freely permit amendments unless the other side proves real prejudice.

What this practically means

Executive summary

This was a Notice of Motion dated 27/01/2018 filed by the petitioner under Article 48 of the Constitution and Rule 18 of the Protection of Rights and Fundamental Freedoms Practice and Procedure Rules, 2013, seeking leave to amend her petition before the Environment and Land Court. The 2nd respondent opposed the application, contending that the supporting affidavit to the petition was sworn by one Mohamed Abdullahi Unshur under an unregistered power of attorney, meaning he had no capacity to swear it, and that the petition was therefore null and void and ought to be struck out. The application came up for interpartes hearing on 18/06/2018, but the respondents, though duly served, were absent, and it proceeded ex parte. The court observed that the validity of the contested affidavit was already the subject of the 2nd respondent's own pending application dated 29/11/2017 seeking its expungement, and it was proper to leave that affidavit on record pending determination of that application. On the amendment itself, the court held that pleadings may be amended at any stage with leave and that amendments are freely granted absent prejudice; the petitioner had explained the need for amendments in her affidavit, which stood uncontroverted as no replying affidavit was filed, and the 2nd respondent had not demonstrated prejudice. The court allowed the amendment in terms of the draft amended petition, directing the petitioner to file and serve the amendment within 14 days, the respondent to file any amended/replying affidavit within 14 days of service, and costs of the application to abide the event.

Key legal issues

Leave to amend pleadings under Rule 18

Holding

Amendment of pleadings may be done at any stage with leave of the court, and the proposed amendments were merited since no prejudice was shown.

Reasoning

Rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 permits a party to amend pleadings at any stage with leave. The petitioner explained the reason for the proposed amendments in her supporting affidavit; the 2nd respondent filed no replying affidavit to controvert those averments and did not demonstrate prejudice. Amendments should be freely allowed absent prejudice.

p. 2

Validity of the supporting affidavit sworn under an allegedly unregistered power of attorney

Holding

Determination deferred; the challenge to the affidavit is the subject of a pending application dated 29/11/2017.

Reasoning

The 2nd respondent contended the supporting affidavit was sworn by a stranger under an unregistered power of attorney, rendering the petition null and void. However, the respondent had already filed an application dated 29/11/2017 seeking to expunge that affidavit, which was yet to be heard. The court deemed it proper to leave the affidavit on record pending hearing and determination of that application.

p. 2

Legal principles established

Amendments of pleadings are freely allowed unless they will prejudice the opposite party.

Court orders

1.Leave to amend the petition granted in terms of the draft amended petition
2.The applicant petitioner to file and serve the proposed amendment of the petition within 14 days
3.The respondent to be at liberty to amend, file and serve their replying affidavit within 14 days from the date of service
4.Costs of the application to abide the event

Authorities

Legislation

Constitution of Kenya, 2010Article 48
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRule 18

Cases cited (4)

Mavuno Industires Ltd & 2 others –Vs- Keroche Industiries
[1999] EALR 234
Francis Mwangi Mugo –Vs- David Kamau Gachago
(2017) eKLR
Jonh Mulwa Kangaatu –vs- Pan African Insurance Co. Ltd
(2015) eKLR
Macfoy –Vs- United Africa Co. Ltd
(1963) 3 AII ER

Jurisdiction invoked: Article 48 of the Constitution of Kenya, 2010 and Rule 18 of the Protection of Rights and Fundamental Freedoms Practice and Procedure Rules, 2013

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Halima Ali Sagara v National Land Commission & another [2018] KEELC 1979 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1979/eng@2018-07-30

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