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ELCOtherNot stated in judgment· [2019] KEELC 4245 (KLR)

M’ Imathiu M’rugiri v M’mutungi Mucheke [2019] KEELC 4245 (KLR)

Environment and Land Court
28 February 2019
ECE. CHERONO
606 words in judgment
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The bottom line

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A Kenyan court struck out a land case amendment filed nearly two years late, showing court deadlines to amend pleadings genuinely expire.

What this practically means

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Executive summary

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The court disposed of a Notice of Preliminary Objection dated 31st May 2012 by consent of the parties at the hearing. The objection, raised by the defendant through M/S Mwenda Mwarania, Akwalu & Co. Advocates, contended that the plaintiff's purported amended Originating Summons offended the mandatory provisions of Order 8 Rule 6 of the Civil Procedure Rules. The defendant argued that by a ruling dated 4th June 2010, Hon. Lady Justice Mary Kasango (as she then was) granted the plaintiff leave to amend, file and serve his Originating Summons as per the draft annexed to the Chamber Summons dated 27th April 2007 within 14 days. Instead of complying, the plaintiff waited almost two years, filing an amended Originating Summons on 16th February 2012 without leave or extension of the compliance period, and additionally added two strangers as co-defendants contrary to the approved draft. The plaintiff, though granted leave to file submissions, failed to comply with directions and filed none. Applying Order 8 Rule 6, which provides that an order giving leave to amend ceases to have effect if the party does not amend within the specified period or 14 days, the court held that the leave had lapsed by operation of law and the purported amendment was a nullity. The preliminary objection was upheld, the amended Originating Summons filed on 16th February 2012 was struck out, and costs were awarded to the defendant. Judgment read and signed at Meru on 28th February 2019 by E. Cherono, ELC Judge.

Key legal issues

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01

Effect of failure to comply with the period for amendment under Order 8 Rule 6 CPR

Holding

The leave to amend granted on 4th June 2010 ceased to have effect by operation of law after the plaintiff failed to amend within 14 days; the amended Originating Summons filed on 16th February 2012 without leave or extension was a nullity and was struck out.

Reasoning

The court relied on the ruling of Kasango J of 4th June 2010 granting leave to amend, file and serve the Originating Summons within 14 days. Order 8 Rule 6 of the Civil Procedure Rules provides that where a party does not amend within the specified period, the order lapses without prejudice to the court's power to extend. The plaintiff neither amended within the period nor sought extension, filing only almost two years later. The amendment therefore had no force of law, and the preliminary objection founded on that rule was upheld.

p. 2

Legal principles established

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  • Where a party fails to amend within the period specified in the order granting leave (or 14 days if none is specified), the order ceases to have effect and any amendment filed afterwards without leave is a nullity.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 31st May 2012 is upheld
  2. 2.The amended Originating Summons filed in Court on 16th February 2012 is struck out
  3. 3.Costs of the Preliminary Objection to the defendant
Jurisdiction invoked
Not stated; first-instance determination of a Notice of Preliminary Objection under Order 8 Rule 6 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, "M’ Imathiu M’rugiri v M’mutungi Mucheke [2019] KEELC 4245 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4245/eng@2019-02-28

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