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ELCDismissedELC Case No. 5 of 2010 (consolidated with ELC No. 128 of 2020)· [2021] KEELC 589 (KLR)

Bernard Mwangi Nderitu & 5 others v Ndiara Enterprise Limited [2021] KEELC 589 (KLR)

Environment and Land Court
24 November 2021
3,362 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 refused late amendments to an 11-year-old land suit, warning that parties who miss court-ordered deadlines risk losing their chance to change their case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (Mbugua J) determined a Notice of Motion dated 19 July 2021 by which the Applicants (led by the 5th Plaintiff in ELC No. 5 of 2010, through their counsel N. Owino) sought leave to amend the Originating Summons to substitute officials of Saikoma Self Help Group for the original Plaintiffs, and a preliminary objection by the Defendant dated 27 September 2021. The consolidated suits (ELC 5/2010 and ELC 128/2020) had earlier been the subject of a consent order of 28 January 2021 permitting amendment and joinder of new Plaintiffs; the Plaintiffs failed to comply and the consent was set aside on 21 June 2021. On the preliminary objection, the court held, applying Mukisa Biscuit, that the grounds raised were factual and required evidence, and treated the objection as a response to the application. On the application, the court held that the Applicants had squandered the earlier opportunity to amend, that the supporting affidavit was sworn by counsel rather than any Applicant, that there was no consensus among Plaintiffs, that the application was filed late and in bad faith a week before a scheduled hearing, and that the amendment would impermissibly convert a personal suit into a representative suit when the proposed Plaintiffs already had a defence and counterclaim in ELC 128/2020. Emphasising active case management and Article 159(2)(b), the court disallowed the application with costs to the Defendant.

Key legal issues

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01

Whether the preliminary objection dated 27.9.2021 was a valid preliminary objection

Holding

It was not; the grounds were factual and required evidence, so the court treated it as a response to the application.

Reasoning

Relying on Mukisa Biscuit, the court held that preliminary objections must be pure points of law. The Defendant's grounds (res judicata, misidentification, prejudice, duplication of pleadings) all required evidence to ascertain their veracity, so they failed the test and were treated as a replying document.

p. 3
02

Whether leave to amend the originating summons should be granted

Holding

No. The Applicants had squandered a prior court-sanctioned opportunity, sought the amendment late, without consensus of co-Plaintiffs, in bad faith, and the amendment would convert a personal suit into a representative suit.

Reasoning

The consent order of 28.1.2021 had already permitted amendment; it lapsed on non-compliance and was set aside. The supporting affidavit was sworn by counsel, not any Applicant. The amendment was filed a week before a scheduled hearing, altering the suit's nature ten years on, while proposed Plaintiffs already had a defence and counterclaim in ELC 128/2020.

p. 4

Legal principles established

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  • A preliminary objection must be raised on pure points of law, not facts requiring evidence (Mukisa Biscuit principle).
  • Where a party fails to amend within the period specified in an order granting leave, the order lapses without prejudice to the court's power to extend time.
  • Amendments sought late, in bad faith, or that alter the nature of the suit may be refused.
  • Courts must apply active case management to bring stale litigation to an end.

Court orders

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  1. 1.The Defendant's preliminary objection was treated as a response to the Notice of Motion rather than a preliminary objection.
  2. 2.The Notice of Motion application dated 19th July 2021 seeking leave to amend the pleadings is disallowed with costs to the Defendant.

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(b)
  • Civil Procedure ActSection 6; Sections 1A and 1B
  • Civil Procedure Rules, 2010Order 8 Rule 3; Order 8 Rule 6

Cases cited (16)

  • Julia Akello Kunguru v Seth Lugonzo and Kenya Tourist Development Corporation
    H.C. Milimani Civil Suit No. 197 of 2001
  • City Clock Ltd v County Clock Kenya Ltd and Bonface Mnange Kitiro
    (2020)
  • Mukisa Biscuit Manufacturing Company Ltd v West-End Distributors
    (1969) EA 696
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    (2014) eKLR
  • Daykio Plantations Ltd v National Bank of Kenya Ltd & 2 others
    (2019) eKLR
  • ANM v PMN
    (2016) eKLR
  • Invesco Assurance Company Ltd & 2 others v Auctioneers Licensing Board & Another; Kinyanjui Njuguna & Company Advocates & Another (interested parties)
    (2020) eKLR
  • Elijah Kipng'eno Arap Bii v Kenya Commercial Bank Ltd
    (2013) eKLR
  • Rubina Ahmed & 3 others v Guardian Bank Ltd (sued in its capacity as a successor in title to first National Finance Bank Ltd)
    (2019) eKLR
  • Anders Bruel T/A Queenscross Avitaition v Nyambura Musyimi & 2 others
    (2017) eKLR
  • Joseph Ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago
    [1995] eKLR
  • Ketteman vs Hansel Properties Limited
    (1988) 1 ALL ER 3S
  • Ransley and Another vs K.N.C.C. Ltd
    Civil Application No. NAI 116 of 1988 (Unreported)
  • Catherine Koriko & 3 others v Evaline Rosa
    [2020] eKLR
  • Abdul Karim Khan v Mohamed Roshan
    (1965) EA 289
  • Lawrence Kinyua Mwai vs. Nyariginu Farmers CO. Ltd & Another
    (2019) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; Article 159(2)(b) of the Constitution of Kenya cited on expeditious justice

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bernard Mwangi Nderitu & 5 others v Ndiara Enterprise Limited [2021] KEELC 589 (KLR)", Case Analysis (2021). ELC Case No. 5 of 2010 (consolidated with ELC No. 128 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/589/eng@2021-11-24

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