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ELCDismissedNot stated in judgment· [2021] KEELC 4643 (KLR)

Isaac Gathungu Wanjohi & another v Catherine Nyambura & 5 others [2021] KEELC 4643 (KLR)

Environment and Land Court
18 January 2021
COChristine Ochieng
3,561 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kajiado Environment and Land Court dismissed defendants' attempt to change agreed court orders and rewrite their defence years later, because they showed no fraud, mistake or good reason.

What this practically means

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Executive summary

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The 2nd, 5th and 6th Defendants, represented by State Counsel, moved the court by Notice of Motion dated 7th November 2019 seeking variation of court orders (misdescribed as having been issued on 18th May 2017), leave to amend their holding Defence dated 20th June 2014, and deeming of the draft amended Defence, documents and witness statements as duly filed. State Counsel Njoroge Allan Kamau explained he took over the file in October 2019 and had obtained government records justifying the amendments. The Plaintiffs supported the application; the 1st, 3rd and 4th Defendants opposed it, citing laches, bad faith, delay, inconsistency with prior pleadings and prejudice. The court identified two issues: whether the orders should be varied and whether leave to amend should be granted. On the first, the court found the operative orders were consent directions of 19th April 2018, which could only be varied on grounds of fraud, mistake or misrepresentation, none of which was demonstrated; the Applicants had also participated in hearings under the consent. On the second, although amendments are generally freely allowed where no uncompensable injustice results, the court held the amendments came too late, substituted a wholly new defence and cause of action, and were sought only after the quashing of a criminal prosecution (Kajiado SPMCC No. 343 of 2018), indicating bad faith and prejudice to the co-Defendants. Article 159(2)(d) and the Oxygen principles could not cure these defects in a suit pending nearly ten years. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the consent orders of 19th April 2018 should be varied

Holding

Refused - the Applicants did not demonstrate fraud, misrepresentation or mistake, and had participated in hearings under the consent

Reasoning

The court found that no orders were issued on 18th May 2017; the orders sought to be varied were the consent directions of 19th April 2018 allowing parties 14 days to file documents. A consent order may only be set aside on grounds such as fraud, mistake or misrepresentation. The Applicants did not show they were compelled to consent, and delayed until after the matter had proceeded to hearing with their counsel cross-examining witnesses, indicating laches and bad faith.

p. 2
02

Whether leave to amend the Defence should be granted

Holding

Refused - the amendment was late, substituted a fresh cause of action, and would prejudice the other Defendants

Reasoning

Although Order 8 rule 3 permits amendments at any time and even after limitation where just, the Applicants gave no explanation for the delay since August 2014, participated in pre-trial directions and hearings (evidencing laches and bad faith), totally altered their original Defence by substituting a fresh cause of action, and failed to disclose that the documents were previously used in a criminal prosecution that was quashed. Prejudice to the co-Defendants and the suit's pendency for nearly 10 years weighed against allowing the amendment.

p. 3

Legal principles established

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  • A consent order can only be set aside on the same grounds as would justify setting aside a contract, namely fraud, mistake or misrepresentation.
  • Amendments to pleadings sought before hearing should be freely allowed if they can be made without injustice to the other side, which can be compensated by costs.
  • There is no power to allow an amendment substituting one distinct cause of action for another or changing the subject matter of the suit.
  • Article 159(2)(d) of the Constitution is not a panacea for procedural defaults.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 7th November 2019
  2. 2.Costs to be in the cause
  3. 3.The court declined to deliver a ruling on the Plaintiffs' application dated 11th November 2019 as it was conceded to by the 1st Defendant on 16th September 2020
Jurisdiction invoked
Article 159(2)(d) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 8 Rules 3 & 8 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Isaac Gathungu Wanjohi & another v Catherine Nyambura & 5 others [2021] KEELC 4643 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4643/eng@2021-01-18

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