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ELCDismissedNot stated in judgment· [2020] KEELC 1125 (KLR)

Karino Ole Koriata v Stephen Kaitet Koriata & 2 others [2020] KEELC 1125 (KLR)

Environment and Land Court of Kenya
2 October 2020
969 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to strike out a land claim pleading over black instead of red ink, prioritising a fair hearing over procedure.

What this practically means

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Executive summary

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By a Notice of Motion dated 28th January, 2020, the 1st Defendant/Applicant sought to strike out the plaintiff's amended plaint dated 30th September, 2019, contending that it offended Order 8 Rule 7(2)(3) of the Civil Procedure Rules, which requires amendments to be shown by striking out deleted words in red ink and underlining added words in red ink, with other colours for further amendments. The applicant complained that the amendments were not marked as required, making it impossible to tell what was deleted or introduced. The plaintiff/respondent opposed, asserting the amendments were duly underlined and deleted, and invoked Article 159(d) of the Constitution, urging that justice be administered without undue regard to procedural technicalities and that no prejudice would be suffered. The court framed one issue: whether the amended plaint offended Order 8 Rule 7(2)(3) and, if so, whether it should be struck out. The court found the red-ink requirements mandatory in terms and confirmed that the amendments were underlined in black rather than red. However, treating the non-compliance as an oversight, the court declined to strike out the plaint, holding that doing so would place hurdles before the plaintiff, offend Article 159(d), and cause a gross miscarriage of justice in a highly emotive land dispute, citing Salama Beach Hotel Ltd v Kenyariri and Associates Advocates (2016) eKLR. The Notice of Motion was declined, each party was directed to bear its own costs, and the plaintiff was given 14 days to regularise the amendments and serve them on the defendants.

Key legal issues

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01

Whether non-compliance with Order 8 Rule 7(2)(3) of the Civil Procedure Rules warrants striking out an amended plaint

Holding

Non-compliance with the red-ink requirements was found, but striking out was declined as an undue technicality

Reasoning

The court found the red-ink requirements of Order 8 Rule 7 to be mandatory in terms, and noted that the amendments in the plaint were underlined in black rather than red. However, the court held this was likely an oversight and that striking out the plaint would place hurdles before the plaintiff and offend Article 159(d) of the Constitution, particularly in a highly emotive land dispute.

p. 2
02

Whether substantial justice should prevail over procedural technicality

Holding

Substantive justice prevails; disputes should be determined on merits rather than on pleading technicalities

Reasoning

Relying on Article 159(d) and the Salama Beach Hotel decision, the court held that striking out the amended plaint would shut the door on the plaintiff and cause a gross miscarriage of justice. Instead, the plaintiff was directed to regularise the amendments within 14 days and serve them.

p. 2

Legal principles established

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  • Amendments to pleadings must be shown by striking out deleted words in red ink and underlining added words in red ink, with other colours for further amendments
  • Justice shall be administered without undue regard to procedural technicalities

Court orders

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  1. 1.The Notice of Motion dated 28/1/2020 is not merited and is declined
  2. 2.Each party to bear its own costs
  3. 3.The plaintiff to appropriately make the amendments (underlined in black ink) within 14 days of the ruling and serve the same on the defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 7(2)(3)
  • Constitution of Kenya 2010Article 159(d)

Cases cited (1)

  • SALAMA BEACH HOTEL LTD & 2 OTHERS -VERSUS- KENYARIRI AND ASSOCIATES ADVOCATES
    (2016) eKLR
Jurisdiction invoked
Article 159(d) of the Constitution of Kenya 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, "Karino Ole Koriata v Stephen Kaitet Koriata & 2 others [2020] KEELC 1125 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1125/eng@2020-10-02

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