Ali & & another v Sake (Environment & Land Case 004 of 2021) [2022] KEELC 3977 (KLR)

High Court of Kenya (appellate side), Isiolo

25 July 2022

PNPM Njoroge

975 words in judgment

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The bottom line

The High Court in Isiolo refused to let an appellant change her appeal nearly four years later, warning that delay after final submissions will not be excused.

What this practically means

Executive summary

This is a ruling on a notice of motion by the appellant, Hadija Hussein Ali, seeking leave under Order 8 rule 3(1) and rule 5 of the Civil Procedure Rules 2010 and sections 1A, 1B and 3A of the Civil Procedure Act to amend her memorandum of appeal filed on September 20, 2018, in an appeal against a ruling delivered on August 22, 2018 by Hon BM Ombewa, Principal Magistrate at Marsabit, in Marsabit PMCC No 15 of 2018. The application was supported by her affidavit sworn on February 25, 2022, on grounds that the amendments would bring the real matters in controversy before the court and would cause no prejudice to the respondent. The application was canvassed by written submissions. The appellant relied on Articles 50 and 159 of the Constitution and on Philip Chemwolo & another v Augustine Kubeude, urging that courts exist to decide rights, not to impose discipline. The respondent opposed, relying on Uchumi Supermarkets Limited & another v Sidhi Investments Limited, and pointed to inordinate delay: the application came nearly four years after the ruling and after ten mentions during which no wish to amend was ever indicated, and after final submissions had been filed. PM Njoroge J held that the appellant had not laid a satisfactory basis for the exercise of the court's discretion; that the oxygen principles and Article 159(2)(d) cannot aid an indolent litigant; and that seeking amendment after final submissions amounts to a clever contrivance to re-litigate. The application was dismissed with costs to the respondent on July 25, 2022 at Isiolo.

Key legal issues

Whether leave to amend a memorandum of appeal should be granted years after filing and after final submissions

Holding

Leave refused; the appellant failed to lay a satisfactory basis for the exercise of the court's discretion and the delay was inordinate, with ten mentions during which no amendment was sought

Reasoning

The court noted the application was filed years after the appeal and after ten mentions with no indication of any wish to amend. Amendments are meant to bring the real matters in controversy before the court, but the appellant all along knew the issues and only sought to amend after reading the respondent's submissions. Article 159 and the oxygen principles cannot aid an indolent litigant, and such an application after final submissions is a contrivance to re-open the case.

p. 3

Legal principles established

The oxygen principles and Article 159(2)(d) cannot be invoked by an indolent litigant to excuse inordinate delay in seeking amendment, especially where final submissions have been filed
An application to amend a memorandum of appeal after parties have filed final submissions is an abuse amounting to an attempt to re-litigate

Court orders

1.The application is dismissed
2.Costs are awarded to the respondent

Authorities

Legislation

Civil Procedure Rules 2010Order 8 rule 3(1), rule 5
Civil Procedure ActSections 1A, 1B, 3A
Constitution of KenyaArticles 50, 159(2)(d)

Cases cited (2)

Philip Chemwolo & another v Augustine Kubeude
[1986] eKLR
Uchumi Supermarkets Limited & another v Sidhi Investments Limited
[2018] eKLR

On appeal from: Principal Magistrates' Court, Marsabit; Marsabit PMCC No 15 of 2018
Jurisdiction invoked: Order 8 rule 3(1) and rule 5 of the Civil Procedure Rules 2010 and sections 1A, 1B and 3A of the Civil Procedure Act (this judgment deals with an interlocutory application, not the substantive appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Ali & & another v Sake (Environment & Land Case 004 of 2021) [2022] KEELC 3977 (KLR)", Case Analysis (2022). Environment & Land Case 004 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3977/eng@2022-07-25

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