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ELCAllowedNot stated in the judgment· [2019] KEELC 81 (KLR)

Mugere Kamotho v James Muchiri Ndegwa & 11 others [2019] KEELC 81 (KLR)

High Court of Kenya
4 December 2019
PNP. M. Njoroge
734 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court allowed a plaintiff to amend pleadings so the real dispute could be decided on its merits, requiring prior notice to the Attorney General.

What this practically means

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Executive summary

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This was a first-instance application dated 29th July 2019 in which the plaintiff, through advocate Ambani Beverlyne Loice of Kaminza & Ambani Advocates, sought leave to amend the plaint dated 3rd March 2015. The proposed amendments were to include Mr. Alphan Muthami Gilbert as next friend of the plaintiff pursuant to leave granted on 8th July 2019, and to add crucial matters of fact not previously pleaded. The applicant argued that the amendments were meant to lay bare the real questions in controversy, ensure determination on true and substantive merits, occasion no prejudice to the defendants, and were filed within reasonable time. When the application came up for inter partes hearing on 4th December 2020 (as the judgment records), Mr. I.C. Mugo for the defendants raised the question whether the plaintiff had served notice on the Attorney General as required under the Government Proceedings Act. Mr. Kaminza undertook to serve the Attorney General and give notice as required by law. The court, per P. M. Njoroge, Judge, allowed the application to facilitate expeditious disposal of the suit. The plaintiff was directed to serve the Attorney General with notice of intention to enjoin him in the suit together with all suit papers within 7 days; all parties were directed to comply with Order 11 Civil Procedure Rules within 30 days; and the suit was set down for hearing. No costs order was made and no authorities were cited.

Key legal issues

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01

Whether leave to amend the plaint should be granted

Holding

The court allowed the application for leave to amend, directing that the Attorney General be served as required by the Government Proceedings Act.

Reasoning

The application sought leave to amend the plaint to include Mr. Alphan Muthami Gilbert as next friend of the plaintiff and to add crucial matters of fact not previously pleaded. The court noted the service issue raised by Mr. Mugo regarding the Attorney General under the Government Proceedings Act, which counsel undertook to cure. To facilitate expeditious disposal, the court allowed the application and gave directions on service and case management.

p. 2

Legal principles established

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  • An amendment of pleadings should be allowed where it lays bare the real questions in controversy and enables the dispute to be determined on its merits, provided no prejudice is occasioned that cannot be compensated by costs.

Court orders

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  1. 1.Leave granted to the plaintiff to amend the plaint dated 3rd March 2015
  2. 2.Plaintiff directed to serve the Attorney General notice of intention to enjoin him in the suit and serve him with all suit papers within 7 days
  3. 3.All parties directed to comply with Order 11 CPR within 30 days
  4. 4.Suit set for hearing on 27th January 2019 (as stated in the judgment)

Authorities

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Legislation

  • Government Proceedings ActNotice provisions (not specified)
  • Civil Procedure RulesOrder 11
Jurisdiction invoked
Not expressly stated; original civil jurisdiction of the High Court under civil procedure legislation (Order 11 CPR referenced)

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, "Mugere Kamotho v James Muchiri Ndegwa & 11 others [2019] KEELC 81 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/81/eng@2019-12-04

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