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ELCOtherNot stated in judgment (original plaint dated 31/3/2017, filed 3/4/2017)· [2019] KEELC 5052 (KLR)

Rebecca Ajiambo Omala v Ephraim Sikenyi Kwena [2019] KEELC 5052 (KLR)

High Court of Kenya
21 May 2019
968 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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The Plaintiff, Rebecca Ajiambo Omala, originally sued Ephraim Sikenyi Kwena alone by a plaint filed on 3/4/2017. The defendant entered appearance and filed a defence on 24/4/2017; no reply to defence was filed, so pleadings closed about 14 days later. On 5/3/2018 the plaintiff filed an amended plaint joining four further defendants: Gabriel Oluoch, Bridgit Ndubi, the County Land Registrar and the Attorney General. The defendant raised a two-pronged preliminary objection: that the amended plaint was filed without leave of court after pleadings closed, and that it offended Section 13A of the Government Proceedings Act (Cap 40), which requires 30 days notice before suing government agents. The plaintiff invoked article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Rules, arguing substance should prevail over procedural technicalities. Relying on SIETCO v Kigwe Complex Limited, the court held that article 159(2)(d) is not a panacea for incompetence; only undue regard to technicalities is de-emphasised, and due regard to procedure remains mandatory. The court upheld the preliminary objection but declined to strike out the suit, reasoning that striking out would only delay the dispute and increase costs without preventing a fresh suit. Instead, proceedings were ordered to stay as they are, with the plaintiff to pay Kshs.5,000/= in costs to the objecting party before being entertained on any further action in the matter.

Key legal issues

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01

Whether an amended plaint may be filed without leave after pleadings have closed

Holding

Leave of court is required once pleadings are closed; the amended plaint filed without leave was unprocedural

Reasoning

The defence was filed on 24/4/2017 and the plaintiff filed no reply, so pleadings closed about 14 days later. The amended plaint was filed about a year later, on 5/3/2018, without leave. The court held that the law and common practice require leave before amendment at that stage, and the plaintiff failed to observe due regard to procedure.

p. 1
02

Whether 30 days notice under Section 13A of the Government Proceedings Act was required before suing the County Land Registrar and the Attorney General

Holding

Such notice was mandatory and the plaintiff was required to give it; failure offended the statutory provision

Reasoning

The County Land Registrar and the Attorney General are agents of government, and Section 13A of the Government Proceedings Act (Cap 40) mandates 30 days notice before suing them. The plaintiff gave no such notice, and the court held the omission could not be excused under article 159(2)(d) of the Constitution.

p. 1
03

Whether article 159(2)(d) cures procedural defects

Holding

It does not; it only de-emphasises undue regard to technicalities, so due regard to procedure remains obligatory

Reasoning

Following SIETCO v Kigwe Complex Limited, the court held article 159(2)(d) is not a panacea for incompetence. What is de-emphasised is undue regard to technicalities, meaning due regard must still be had to procedure, since disregard of procedure can lead to anarchic proceedings and undesirable outcomes.

p. 2

Legal principles established

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  • Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Rules are not a refuge for the negligent, incompetent or careless; due regard must be had to procedure

Court orders

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  1. 1.Preliminary objection upheld
  2. 2.Proceedings stay as they are
  3. 3.Plaintiff to pay costs of Kshs.5,000/= to the party who filed the objection before being entertained on any other action in the matter

Authorities

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Legislation

  • Government Proceedings Act (Cap 40)Section 13A
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure Rules, 2010Sections 1A and 1B
  • Arbitration ActSection 6(1)

Cases cited (1)

  • China Sichuan Corporation for International Techno-Economic Co-operative (SIETCO) v Kigwe Complex Limited
    HCC No. 464 of 2012, Nairobi
Jurisdiction invoked
Original civil jurisdiction (plaint suit); no specific constitutional or statutory provision invoked as basis

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, "Rebecca Ajiambo Omala v Ephraim Sikenyi Kwena [2019] KEELC 5052 (KLR)", Case Analysis (2019). Not stated in judgment (original plaint dated 31/3/2017, filed 3/4/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5052/eng@2019-05-21

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