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ELCDismissedNotice of Motion dated 26th February 2019 (in Judicial Review proceedings arising from ex-parte Chamber Summons dated 18th November 2011)· [2019] KEELC 1648 (KLR)

Republic v Banjamin Maora & 2 others; Philip Maora & 4 others (Interested Parties) [2019] KEELC 1648 (KLR)

High Court of Kenya
24 September 2019
COChristine Ochieng
1,449 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was a ruling of the High Court at Ngong (Christine Ochieng, J) on a Notice of Motion dated 26th February 2019 in which Interested Parties, through Philip Maora, sought leave to amend their ex-parte Chamber Summons dated 18th November 2011, which had sought leave to institute judicial review orders of prohibition and certiorari against proceedings in Kajiado Central Land Dispute Case Number 661/07/2011 and Land Dispute Case Number 99 of 2011. The applicants argued the amendment would clarify parties and issues, introduce no new facts, and cause no prejudice. The 1st Respondent opposed, citing inordinate delay since 2011, absence of an annexed draft amendment, and lack of locus standi for want of a grant of letters of administration to the estate of Maora Ole Lolpisia. The court framed two issues: whether leave to amend should be granted, and costs. Applying Order 8 rule 5, section 100 of the Civil Procedure Act and the principles in Central Kenya Ltd v Trust Bank Ltd and AAT Holdings Ltd v Diamond Shields International Ltd, the court held that amendments require necessity, absence of undue delay, and absence of prejudice. It found the application pending for about eight years without explanation for the delay, no draft amendments annexed, and non-compliance with a direction of 27th September 2018 to set the leave application for hearing within 21 days. The application was dismissed with costs.

Key legal issues

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01

Whether leave to amend a judicial review leave application pending for about eight years should be granted

Holding

Leave to amend was refused because the applicants gave no explanation for the delay, failed to annex a draft of the proposed amendments, and failed to comply with a prior direction to set the leave application down for hearing

Reasoning

The court applied the principles in Central Kenya Ltd v Trust Bank Ltd and AAT Holdings Ltd v Diamond Shields International Ltd. An amendment should be necessary to determine the real controversy, with no undue delay and no prejudice. Here the Chamber Summons of 2011 had lain dormant for about eight years without explanation; no draft amendment was annexed, leaving the court unable to assess whether the amendments would be prejudicial or would enable determination of the real questions. The applicants also ignored the direction of 27th September 2018 to set the leave application for hearing within 21 days.

p. 3
02

Costs of the application

Holding

Costs awarded to the 1st Respondent as the application was unmerited and dismissed

Reasoning

Costs are discretionary and follow the event. Having dismissed the application as unmerited, the court ordered the applicants to pay the costs.

p. 3

Legal principles established

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  • Amendments are allowed where necessary for determining the real question in controversy or to avoid multiplicity of suits, provided there is no undue delay, no new or inconsistent cause of action, no vested interest or accrued right affected, and no injustice to the other side
  • The court may order amendment of any document, on terms as to costs, for determining the real question in controversy or correcting any defect or error in proceedings

Court orders

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  1. 1.The Notice of Motion dated 26th February 2019 is dismissed
  2. 2.The Applicants to pay the costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 100
  • Civil Procedure RulesOrder 8 Rule 3, Order 8 rule 5, Order 51 Rules 1 and 4, Order 53 rule 1
  • Land Disputes ActNo. 18 of 1990 (referred to by 1st Respondent as ceased)
  • Fair Administrative Actions Actreferred to regarding timelines for judicial review

Cases cited (12)

  • AAT Holdings Limited v Diamond Shields International Ltd
    [2014] eKLR
  • Martin Wesula Machyo v Housing Finance Company of Kenya Limited & Another
    (2015) eKLR
  • Central Kenya Ltd v Trust Bank Ltd
    Appeal No. 222 of 1998; [2000] 2 EA 365
  • Tulip Properties Ltd v Mohammed Koriow & 6 Others
    (2013) eKLR
  • Timothy Ndalo Otiende v Joshua A. Osewe
    Kisumu HCCA No. 73 of 1996
  • Daniel Ngetich & Anor v K-Rep Bank Limited
    (2013) eKLR
  • Eastern Bakery v Castelino
    (1958) EA 46
  • Kassam v Bank of Baroda (Kenya) Ltd
    (2002) 1 KLR 296
  • Hiram Bere Kinuthia & Anor v Edick Omondi & 3 Others
    (2014) eKLR
  • Republic v Rosemary Wairimu Exparte Applicant v Ihururu Dairy Farmers Co-operative Society
    Judicial Review Application No. 6 of 2014
  • Party of Independent Candidate Kenya v Mutula Kilonzo & 2 Others
    HC EP No. 6 of 2013
  • Justice Kuloba, Judicial Hints on Civil Procedure, 2nd Edition, Page 101
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 8 Rule 3 and Order 51 Rules 1 and 4 of the Civil Procedure Rules; Order 53 rule 1; Section 100 of the Civil Procedure Act

Key timeline

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Banjamin Maora & 2 others; Philip Maora & 4 others (Interested Parties) [2019] KEELC 1648 (KLR)", Case Analysis (2019). Notice of Motion dated 26th February 2019 (in Judicial Review proceedings arising from ex-parte Chamber Summons dated 18th November 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1648/eng@2019-09-24

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