Mohammed Haji Hussein & 6 others v Mandera Water and Sewerage Company Ltd & 2 others; County Commissioner, Mandera County & 2 others (Interested Parties) [2021] KEELC 4054 (KLR)

The court relied on the liberalized constitutional regime of standing. Articles 22 and 258 give every person the right to institute proceedings alleging constitutional contravention, including persons acting in the public interest. Since the thrust of the Petition is that the Petitioners' rights under Articles 29, 40(1), 47, 60(1) and 63(3&4) were infringed by the project in the area where they reside, they have locus.

Under Order 19 Rules 3, 4 and 7 of the Civil Procedure Rules, the court may receive an affidavit notwithstanding irregularity in form. The deponent admitted executing the affidavit; only the jurat name was wrong, an error by counsel. Following Microsoft Corporation v Mitsumi and Esther Murugi Muhoi, an error not going to jurisdiction or causing fundamental prejudice should not lead to striking out; the defect is curable by supplementary affidavit.

Rule 18 of the Mutunga Rules permits amendment with leave of court. Following Central Kenya Ltd v Trust Bank Ltd, amendments should be allowed where there is no undue delay, no vested interest is affected and no uncompensatable prejudice results. Amending the names of the Petitioners occasions no undue delay and avoids multiplicity of suits, so the discretion is exercised in the Petitioners' favour.

The substantive question of ownership of the suit property must await the main suit, so the non-disclosure claim was premature. However, the court was subsequently informed the project was at an advanced stage, financed by the European Union and benefiting the community. Applying the constitutional conservatory order principles, public interest and balance of convenience now favour the Respondents, warranting setting aside the orders.