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ELCOtherNot stated in the judgment· [2019] KEELC 2065 (KLR)

Mugera Kamotho v James Muchiri Ndegwa & 11 others [2019] KEELC 2065 (KLR)

Environment and Land Court
30 July 2019
PNP.M. NJOROGE
785 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled you cannot quietly amend your lawsuit partway through a trial; the other side must be heard first.

What this practically means

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Executive summary

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This is an ex parte ruling by the Environment and Land Court at Chuka dated 30th July, 2019 (P.M. Njoroge, J). The applicant, the plaintiff, filed a notice of motion dated 29th July, 2019 under Article 159(2) of the Constitution, Section 3A of the Civil Procedure Act, and Orders 50 Rule 1 and 8 Rule 3 of the Civil Procedure Rules, 2010, seeking leave to amend the plaint dated 3rd March, 2015, that the amended plaint be deemed duly filed and served, and costs in the cause. The proposed amendments sought to include Mr. Alphan Muthami Gilbert as next of friend to the plaintiff, pursuant to leave granted on 8th July, 2019, and to plead additional facts said to lay bare the real questions in controversy. The application was supported by the affidavit of Ambani Beverlyne Loice, an advocate with Kaminza & Ambani Advocates, who deponed that the amendments were necessary, made within reasonable time, and caused no compensable prejudice to the defendants. Heard ex parte on 30th July, 2019, M/s Ambani relied on the grounds and the supporting affidavit. The court noted that part of the plaintiff's evidence had already been heard and held it necessary to hear the defendants before considering whether to allow or disallow the amendment. The court declined to grant the prayers ex parte, directed service on the defendants within 14 days, and fixed the application for inter partes hearing on 23rd September, 2019. No costs order was made.

Key legal issues

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01

Whether leave to amend a plaint can be granted ex parte after part of the plaintiff's evidence has been heard

Holding

No - the court refused to determine the application ex parte and directed service and an inter partes hearing

Reasoning

The court noted that part of the plaintiff's evidence had already been heard. Because amendments at that stage could affect the defendants, the judge held it necessary to hear the defendants before deciding whether to allow or disallow the amendment. The court therefore declined to grant the prayers ex parte and directed service of the application within 14 days, with an inter partes hearing set for 23rd September, 2019.

p. 2

Legal principles established

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  • An application to amend a plaint at a late stage (after part of the evidence has been heard) should not be determined ex parte; the defendants must first be heard.

Court orders

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  1. 1.The prayers sought in the application are not tenable at this exparte stage
  2. 2.The applicant is directed to serve the application upon the defendants within 14 days
  3. 3.The application will be heard interpartes on 23rd September, 2019

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)
  • Civil Procedure ActSection 3A
  • Civil Procedure Rules, 2010Order 50 Rule 1
  • Civil Procedure Rules, 2010Order 8 Rule 3
Jurisdiction invoked
Article 159(2) of the Constitution of Kenya; Section 3A of the Civil Procedure Act; Order 50 Rule 1 and Order 8 Rule 3 of the Civil Procedure Rules, 2010

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, "Mugera Kamotho v James Muchiri Ndegwa & 11 others [2019] KEELC 2065 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2065/eng@2019-07-30

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