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ELCAllowedNot stated in judgment· [2020] KEELC 2786 (KLR)

Bernard Itumo Mungai & 7 others v Paul Kimakon & 3 others [2020] KEELC 2786 (KLR)

Environment and Land Court
5 May 2020
COChristine Ochieng
1,643 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed land plaintiffs to fix errors in their five-year-old case, ruling that delay alone does not block honest corrections that harm no one.

What this practically means

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Executive summary

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This was a ruling on the Applicants' Notice of Motion dated 9th May 2019, brought under Order 8 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules, seeking leave to amend an Originating Summons dated 30th December 2014 and filed on 3rd February 2015. The Applicants, through the supporting affidavit of Joseph Nzeti Katue, contended that the Originating Summons contained several errors that the amendments would correct, enabling the court to determine the issues with clarity, and that the Respondents would suffer no prejudice. The Respondents opposed via Grounds of Opposition, arguing that the application was brought five years late, was an abuse of process, sought removal of the 1st, 3rd and 7th Plaintiffs without justification, introduced no new material facts, and that no authority to swear the supporting affidavit had been filed. Justice Christine Ochieng framed a single issue: whether leave to amend should be granted. Relying on section 100 of the Civil Procedure Act, Order 8 Rules 3 and 5, and the principles in Elijah Kipngeno Arap Bii v Kenya Commercial Bank, she found the amendments were aimed at correcting errors on the face of the summons, did not introduce a new cause of action, did not compromise the cause of action despite the removal of three Plaintiffs, and caused no prejudice. The missing written authority was held to be a procedural technicality offending Articles 50(4) and 159(2)(d) of the Constitution. The application was allowed, with 14 days granted to each side to file the amended summons and response, and costs awarded to the Respondents.

Key legal issues

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01

Whether leave should be granted to amend the Originating Summons despite delay

Holding

Leave granted; amendments correct errors, introduce no new cause of action and cause no prejudice to the Respondents

Reasoning

The court applied section 100 of the Civil Procedure Act and Order 8 Rules 3 and 5, and the principles in Elijah Kipngeno Arap Bii v Kenya Commercial Bank, that amendments should be allowed if made in good faith, are not immaterial or technical, and do not introduce a new cause of action. It found the removal of the 1st, 3rd and 7th Plaintiffs did not compromise the cause of action and that the Respondents could be compensated by costs and by leave to respond.

p. 3
02

Whether absence of written authority for the deponent of the supporting affidavit defeats the application

Holding

Filing written authority is procedural, not substantive; reliance on it offends Articles 50(4) and 159(2)(d) of the Constitution

Reasoning

The deponent confirmed in the verifying affidavit that he had authority from the other Plaintiffs. The court held the absence of a separately filed written authority to be a technicality, invoking the constitutional injunction against undue regard to procedural technicalities and the right to a fair hearing.

p. 3

Legal principles established

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  • Powers of the court to allow amendment are to determine the true, substantive merits of the case and may be exercised at any stage of the proceedings
  • Mere delay is not a ground for declining leave to amend
  • Failure to file written authority to swear an affidavit is procedural, not substantive

Court orders

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  1. 1.Applicants granted leave to amend the Originating Summons dated 30th December, 2014
  2. 2.Applicants granted leave of 14 days to file and serve the Amended Originating Summons
  3. 3.Respondents granted leave of 14 days to file their response to the Amended Originating Summons upon service
  4. 4.Costs of the application awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure Actsection 100
  • Civil Procedure RulesOrder 8 Rule 3(1) and (2)
  • Civil Procedure RulesOrder 8 Rule 5(1)
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of KenyaArticle 50(4)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (7)

  • Central Bank of Kenya Limited Vs Trust Bank Limited
    (2000) 2 EA 365
  • Tabitha Wandia Vs Francis Mwangi
    (2017) eKLR
  • Institute for Social Accountability & Another V Parliament of Kenya & 3 Others
    (2014) eKLR
  • Kampala Coach Limited Vs First Community Bank Limited & Another
    (2016) eKLR
  • Abdulla Abshir & 38 others V Yasmin Farah Mohammed
    (2015) eKLR
  • Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited
    [2013] eKLR
  • Joseph Ochieng & 2 others vs. First National Bank of Chicago
    Civil Appeal No. 149 of 1991
Jurisdiction invoked
Order 8 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules; section 100 of the Civil Procedure Act

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, "Bernard Itumo Mungai & 7 others v Paul Kimakon & 3 others [2020] KEELC 2786 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2786/eng@2020-05-05

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