Lwangu v Ndote; Kabui & 13 others (Interested Parties) (Environment & Land Case 79 of 2010) [2023] KEELC 52 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether to allow joinder of parties and amendment of the plaint under Order 1 Rule 10(2) and Order 8 Rules 3 and 5 of the Civil Procedure Rules
The application was allowed. The draft Amended Plaint satisfactorily explained the reasons for including the new parties, and the reliefs sought against them could not be adequately pursued had they remained as interested parties.
The court exercised its discretion judiciously, noting that amendment and joinder enable the court to effectually and completely adjudicate on all questions, avoid multiplicity of suits, and give every affected party an opportunity to be heard. Although the amendments would delay the trial, that delay could be compensated by costs. Weighing the prejudice of refusing the amendment against the delay, allowing the amendment served the better ends of justice.
Whether the court could determine the application in the absence of properly filed submissions
Yes. Submissions that were not stamped as filed and had no evidence of payment of fees were not properly on record and were not considered, but their absence did not prejudice the determination on the merits.
The court held that submissions are merely advocacy, not facts or pleadings, and a party who fails to plead a cause of action discloses none, while one who fails to adduce evidence fails to discharge the burden of proof. Citing the Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi, the court noted many cases are decided without hearing submissions, based only on evidence presented.
Legal principles established
#- A court may allow amendment of a pleading even where the effect is to add or substitute a new cause of action arising out of the same facts, provided it serves the ends of justice.
- Submissions are not evidence or pleadings, and a court may lawfully decide a matter without considering them.
Court orders
#- 1.Leave granted to the Plaintiff to amend the Plaint as per the annexed draft Amended Plaint, to be filed and served within seven (7) days failing which the orders lapse automatically
- 2.The Plaintiff to pay thrown away costs of Kshs 15,000.00 to the 1st and 2nd Interested Parties jointly and Kshs 75,000.00 to the 3rd - 12th Interested Parties jointly within fourteen (14) days failing which the Amended Plaint shall stand struck out
- 3.Evidence of payment of the thrown away costs to be transmitted in writing to the Court and all other Defendants
- 4.Service of the Amended Plaint and Summons to Enter Appearance on newly enjoined parties only after payment of thrown away costs
- 5.Existing Defendants to file and serve amended statements of Defence within three (3) days after transmission of evidence of payment or after lapse of 14 days, whichever occurs earlier
- 6.Newly enjoined parties to comply with the Civil Procedure Rules timelines for entering appearance and filing Defences
- 7.Witnesses who have already testified to be recalled, if need be, only for cross-examination and re-examination
- 8.Matter fixed for directions and confirmation of compliance on February 20, 2023
- Jurisdiction invoked
- Sections 3A and 100 of the Civil Procedure Act; Order 8 Rules 3 and 5 and Order 1 Rule 10(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lwangu v Ndote; Kabui & 13 others (Interested Parties) (Environment & Land Case 79 of 2010) [2023] KEELC 52 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/52/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.