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ELCPartially AllowedKakamega HC ELC No. 154 of 2015· [2019] KEELC 1646 (KLR)

Ethics & Anti-Corruption Commission v Boniface Shibira & 7 others [2019] KEELC 1646 (KLR)

Environment and Land Court
24 September 2019
1,332 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court allowed the plaintiff to amend its plaint but refused joinder because a 2018 consolidation order had already brought all defendants before the court.

What this practically means

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Executive summary

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The plaintiff filed a Notice of Motion dated 27th June 2019 under Order 1 Rule 10 and Order 3 Rules 3 and 8 of the Civil Procedure Rules seeking leave to join Violette Merab Songa, Eugene Harry Songa and Eunice Jeanette Songa as defendants, leave to amend its plaint in terms of an annexed amended plaint, and costs. The application was supported by the affidavit of Koskey Robert Kimutai Bii on the ground that the joinder and amendment were necessary to enable the court to completely and finally adjudicate on all questions in controversy, with no prejudice to the current defendants. The 2nd and 3rd defendants opposed, arguing that an order of 23rd May 2018 consolidating this suit with Kakamega HC ELC No. 239 of 2016 already brought all defendants on board, that the plaintiff had delayed since 2009 and had failed to comply with a 6th May 2019 direction, that no new issue was raised in the intended amendment, and that the application was an abuse of process. Matheka J set out the Order 1 Rule 10(2) power to add parties at any stage and the Central Kenya Ltd principle that amendments and joinders be freely allowed absent uncompensatable prejudice. The court held the consolidation order had already brought all defendants on board, so joinder was unnecessary, but found the proposed amendments, limited to the description of parties and prayers, caused no prejudice. The application was allowed in terms of prayer (b) only, with costs in the cause.

Key legal issues

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01

Joinder of parties under Order 1 Rule 10(2)

Holding

The court has power at any stage to add a party whose presence is necessary for complete adjudication, but here the joinder was unnecessary because the 2018 consolidation order had already brought all defendants on board

Reasoning

The court set out the Order 1 Rule 10(2) power to add parties at any stage, including even after judgment or at appellate stage, guided by the Central Kenya Ltd principle that amendments and joinders be freely allowed absent uncompensatable prejudice. Applying that to the facts, the consolidation order of 23rd May 2018 of ELC No. 154 of 2015 with ELC No. 239 of 2016 already secured the presence of all defendants, so the joinder relief added nothing and was not granted.

p. 2
02

Amendment of pleadings after close of pleadings

Holding

Leave to amend was granted because the amendments concern only the description of parties and prayers sought and occasion no prejudice to the other side

Reasoning

The court applied the Central Kenya Ltd principles as restated in AAT Holdings Ltd v Diamond Shields International Ltd: amendments necessary to determine the real controversy are allowed to avoid multiplicity of suits, so long as no new or inconsistent cause of action is introduced, no vested rights are affected, and no uncompensatable prejudice results. Perusing the proposed amended plaint, the judge found the amendments limited to the description of the parties and the prayers sought and that no prejudice would follow, so the discretion was exercised in favour of allowing the amendment.

p. 2

Legal principles established

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  • Amendments and joinder of parties should be freely allowed at any stage of the proceedings unless they cause prejudice or injustice that cannot be compensated in costs
  • A suit shall not be defeated by reason only of misjoinder or non-joinder of a party, and joinder may occur even after judgment

Court orders

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  1. 1.Leave granted to the plaintiff to amend its plaint in terms of the annexed amended plaint
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10
  • Civil Procedure RulesOrder 3 Rules 3 and 8

Cases cited (6)

  • Central Kenya Ltd vs Trust Bank & 4 Others
    CA No. 222 of 1998
  • AAT Holdings Limited v Diamond Shields International Ltd
    [2014] eKLR
  • Isaac Awuondo vs Surgipharm Ltd & Another
    (2011) eKLR
  • Moi University v Vishva Builders Limited
    Civil Appeal No. 296 of 2004 (unreported)
  • H.D Hasmani v. Banque Du Congo Belge
    (1938) 5 E.A.C.A 89
  • Patel vs. E.A. Cargo Handling Services Ltd.
    [1974] E.A. 75
Jurisdiction invoked
Order 1 Rule 10 and Order 3 Rules 3 and 8 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, "Ethics & Anti-Corruption Commission v Boniface Shibira & 7 others [2019] KEELC 1646 (KLR)", Case Analysis (2019). Kakamega HC ELC No. 154 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1646/eng@2019-09-24

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