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ELCPartially AllowedPetition (file handled alongside Petition No. 13 of 2021)· [2021] KEELC 3218 (KLR)

Lawrence Kanyi Ndewa & 12 others v Kenya Defence Forces & 3 others; County Government of Meru & another [2021] KEELC 3218 (KLR)

Environment and Land Court
27 May 2021
LMLucy N. Mbugua
874 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled an existing status quo order stays in place automatically, and parties may amend a petition once without court permission if pleadings aren't closed.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Meru (Lucy N. Mbugua, ELC Judge) delivered on 27 May 2021 in a pending land petition. When the applicants' application dated 11 May 2021 came up for directions, counsel made three oral requests: continuation of interim relief (prayers 3 and 4) against trenching activities by the 1st and 2nd respondents on the suit land; leave to join the LAPSSET Corridor Development Authority and the Kenya National Highways Authority as interested parties; and leave to amend the petition to add new issues, notably compulsory acquisition of land. The 1st and 2nd respondents opposed, arguing that granting prayers 3 and 4 would pre-empt the application and that no basis was laid for amendment without a formal application. The court held that the status quo order already issued on 12 May 2021 was ancillary in nature, preserving the situation pending determination without requiring proof of a prima facie case, and therefore required no extension. Applying Order 8 Rule 1 and Order 2 Rule 13 of the Civil Procedure Rules, the court found the pleadings had not closed since no respondent had filed a defence, so the applicants could amend once without leave. The court ordered the status quo to remain in force until the application is determined, allowed an amended petition within 14 days, directed respondents to respond within 30 days, and directed the file be handled alongside Petition 13 of 2021, with hearing on 15 July 2021. No costs order was made.

Key legal issues

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01

Effect and duration of a status quo order

Holding

The status quo order granted on 12.5.2021 subsists until the application dated 11.5.2021 is heard and determined; no separate extension order is needed

Reasoning

Relying on Murithi J in the Baobab Beach Resort judicial review matter, the court held that a status quo order is ancillary, preserving the situation as it exists pending determination, and does not depend on proof of right or prima facie case. Since the main application remained pending, the order continued automatically and the question of extension did not arise.

p. 2
02

Amendment of the petition to add parties and issues

Holding

As no respondent had filed a defence or response and pleadings were not closed, the applicants could amend the petition once without leave under Order 8 Rule 1

Reasoning

Order 8 Rule 1 permits a party to amend once without leave before pleadings close. Order 2 Rule 13 provides pleadings close fourteen days after service of a reply or defence. None of the respondents had filed defences and each sought more time, so pleadings had not closed and the applicants were at liberty to file an amended petition adding LAPSET, KeNHA and new issues including compulsory acquisition.

p. 3

Legal principles established

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  • Pleadings close fourteen days after service of the reply or defence, and until then a party may amend once without leave
  • A status quo order preserves the existing situation pending hearing and does not depend on proof of a prima facie case

Court orders

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  1. 1.The orders of maintenance of status quo given on 12.5.2021 are to remain in force until the application dated 11.5.2021 is heard and determined
  2. 2.The applicants to file and serve their amended petition within 14 days from delivery of the ruling
  3. 3.The respondents to file and serve their responses to the pending application and the amended petition within 30 days from delivery of the ruling
  4. 4.The applicants at liberty to file and serve any further affidavits within 14 days thereafter
  5. 5.The file to be handled alongside Petition No. 13 of 2021
  6. 6.Application to be heard on 15.7.2021

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 1
  • Civil Procedure RulesOrder 2 Rule 13

Cases cited (2)

  • Republic –vs- The Chairperson Business Premises Rent Tribunal at Mombasa (Bench Mochache) Exparte Baobab Beach Resort (Mombasa Limited) & Monica Clara Schriel
    Mombasa Misc. Civil Application (JR) No.26 of 2010
  • The Matter Of An Application By Saifudeen Abdullabhai & 4 Others For Leave To Apply For Judicial Review And For Orders Of Certiorari And Prohibition
    [2013] eKLR
Jurisdiction invoked
Original petition jurisdiction of the Environment and Land Court; procedural jurisdiction under the Civil Procedure Rules (Order 8 Rule 1, Order 2 Rule 13)

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, "Lawrence Kanyi Ndewa & 12 others v Kenya Defence Forces & 3 others; County Government of Meru & another [2021] KEELC 3218 (KLR)", Case Analysis (2021). Petition (file handled alongside Petition No. 13 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3218/eng@2021-05-27

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