Mramba & 45 others v St. Elizabeth Academy -Karen Limited & 2 others (Civil Suit 67 of 2020) [2022] KEELC 3921 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a land injunction application amended without permission and paused the case because a similar suit was already ongoing.
What this practically means
#Executive summary
#Key legal issues
#Whether an amended Notice of Motion filed without leave of court is properly before the court
It is not. A Notice of Motion is not a pleading amendable without leave under Order 8 Rule 1(1); while Section 100 of the Civil Procedure Act empowers the court to amend defects, that power must be invoked by the party. The unilateral amendment changed the suit property (Plot 395/II/MN instead of Plot 395/I/MN) and affected existing interim orders, so the amended application was struck out.
The court held that applications are interlocutory modes of attaining short-term reliefs, unlike pleadings determined at trial, and leave of court exists to prevent ambush and uphold natural justice. The amendment here altered the property described and went to the root of the application, undermining the interim orders granted ex-parte on 25th February 2021. The proper remedy was to withdraw and file a fresh application; the amended one had to be struck out.
Whether the present suit is res judicata or sub judice to ELC No. 24 of 2018
The suit is sub judice to ELC No. 24 of 2018: the same group of litigants and the same registered owner (St. Elizabeth Academy Karen) are involved over the same subject matter. The proceedings in this suit were stayed pending the hearing and determination of ELC No. 24 of 2018.
The court applied Section 6 of the Civil Procedure Act and the Supreme Court's statement of the sub-judice doctrine in the KNCHR case. Although framed by the Defendants as res judicata, the court found the earlier ruling of 29th January 2019 had not concluded the matters; rather both suits were live, involving overlapping parties (e.g. Eric K. Muzungu, Tom Obore, Ramadhan Juma, Kazungu Charo) and the same land, so the later suit had to await the earlier one.
Who bears the costs of the application
Costs follow the event under the proviso to Section 27(1) of the Civil Procedure Act; since the amended application was dismissed/struck out, the Plaintiffs were to bear the costs of both applications.
The court reiterated that costs are discretionary and follow the event, meaning the result of the proceedings. Having struck out the amended application and vacated the interim orders, the Plaintiffs' failure entitled the Defendants to costs of both the original and amended applications.
Legal principles established
#- A Notice of Motion is not a pleading within the meaning of Section 2 of the Civil Procedure Act, and Order 8 of the Civil Procedure Rules on amendment of pleadings cannot be invoked to amend an application without leave of court.
- The court retains a general power to amend defects in proceedings under Section 100 of the Civil Procedure Act, but that power must be invoked by the party seeking the amendment; unilateral amendment without leave goes to the root of an interlocutory application and can forfeit interim orders.
- Where two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the later-filed matter ought to be stayed pending determination of the earlier suit under the sub-judice rule.
Court orders
#- 1.That the amended Notice of Motion application dated 14th July 2021 be and is hereby struck out for being amended without the leave of this Honorable Court which is mandatory requirement.
- 2.That the interim orders issued on 25th February 2021 by this Honorable Court in relation with the Notice of Motion application dated 25th February 2021 filed by the Plaintiffs/Applicants herein be and are hereby vacated henceforth.
- 3.That the Plaintiffs/Applicants herein to bear the costs of both the Notice of Motion application dated 25th February 2021 and the ostensible Amended Notice of Motion application dated 14th July 2021.
- 4.That the suit herein be and is hereby stayed until the Civil Suit - ELC No. 24 of 2018 is heard and determined to its finality by the trial Court thereof.
- Jurisdiction invoked
- Environment and Land Court established under Article 162(2)(b) of the Constitution and the Environment and Land Court Act, No. 19 of 2011; Civil Procedure Act, Cap. 21 (Sections 3A, 64, 6, 27 and 100) and Civil Procedure Rules, 2010 (Order 40 Rule 10(1)(b), Order 1 Rule 8)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mramba & 45 others v St. Elizabeth Academy -Karen Limited & 2 others (Civil Suit 67 of 2020) [2022] KEELC 3921 (KLR)", Case Analysis (2022). ELC No. 67 of 2020 (OS) (formerly Judicial Review Miscellaneous Civil Case No. 374 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3921/eng@2022-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.