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ELCPartially AllowedEnvironment & Land Case 56 of 2019· [2023] KEELC 16368 (KLR)

Oroto & another v Okello & 4 others

Environment and Land Court
23 March 2023
BOBoaz N. Olao
2,476 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan land court allowed a family to update their lawsuit to replace deceased parties, but made them pay costs for an unnecessary time-extension request.

What this practically means

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Executive summary

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This ruling by Olao J of the Environment and Land Court at Busia determined a Notice of Motion dated November 30, 2022 by which the Applicants sought extension of time and leave to amend their Originating Summons. The suit had earlier been dismissed and reinstated by Omollo J by a ruling of July 21, 2022 on conditions: deposit of Kshs 60,000 as security for costs within 90 days, and either withdrawal of the suit against the deceased 3rd and 4th Respondents or their substitution within 120 days. The Applicants deposited the security on September 19, 2022 and withdrew the suit against the deceased Respondents on November 1, 2022, both within the prescribed periods. The Respondents opposed, contending the conditions were unmet and the application was an abuse of court. The court held that Omollo J's order contained two alternative limbs and that compliance with one - the withdrawal - was sufficient; extension of time was therefore superfluous and was refused. On amendment, the court applied Order 8 Rule 5(1) of the Civil Procedure Rules, Section 100 of the Civil Procedure Act and the Joseph Ochieng case, holding that the wide power to amend must be exercised judicially; since the hearing had not commenced and the amendment was needed to bring on board legal representatives of deceased parties, and would enhance the Article 50(1) right to a fair trial, leave was granted. The Applicants were directed to file and serve the amended Originating Summons within 7 days, Respondents to reply within 14 days of service, the Applicants to meet the costs of the application, and the matter was set for pre-trial on April 18, 2023.

Key legal issues

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01

Whether extension of time was necessary

Holding

No - the Applicants had withdrawn the suit against the deceased 3rd and 4th Respondents within the 120 days allowed, satisfying one of two alternative conditions

Reasoning

Omollo J's order gave the Applicants two options: withdraw the suit against the deceased defendants or substitute them within 120 days. The Applicants withdrew on November 1, 2022, within the period expiring November 21, 2022, and also deposited the Kshs 60,000 security within 90 days. Having complied with one limb, no extension of time was needed; the judge never required both withdrawal and substitution simultaneously.

p. 4
02

Whether leave to amend the Originating Summons should be granted

Holding

Yes - the amendment to substitute deceased parties and add two Applicants was merited, the hearing not having commenced, and Respondents compensable by costs

Reasoning

Order 8 Rule 5(1) and Section 100 of the Civil Procedure Act confer a wide power to amend, exercisable judicially. The hearing had not commenced; the amendment was needed to bring on board legal representatives of deceased parties and would enhance the Article 50(1) right to a fair trial. The Respondents could be adequately compensated by costs.

p. 5

Legal principles established

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  • Compliance with one of two alternative limbs of a conditional order constitutes sufficient compliance with the whole order
  • The power to amend pleadings is wide but must be exercised judicially; amendments enhancing the constitutional right to a fair trial should be freely allowed

Court orders

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  1. 1.Leave to amend the Originating Summons is granted
  2. 2.Applicants to file and serve the amended Originating Summons upon all Respondents including the substitutes within 7 days and pay the requisite fees
  3. 3.Respondents to file and serve replying affidavits to the amended Originating Summons within 14 days from the date of service
  4. 4.Applicants to meet the costs of the application
  5. 5.Matter to be mentioned before the Deputy Registrar for pre-trial on April 18, 2023 to confirm compliance with Order 11 and thereafter listed for hearing

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 5(1)
  • Civil Procedure RulesOrders 8, 50 and 51
  • Civil Procedure RulesOrder 11
  • Civil Procedure ActSection 100
  • Constitution of KenyaArticle 50(1)

Cases cited (1)

  • Joseph Ochieng & 2 Others v First National Bank of Chicago
    CA Civil Appeal No 149 of 1991

    Principles governing allowance of amendments: good faith, timeliness, no new substantially different case, limitation rights preserved

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application premised on Orders 8, 50 and 51 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, "Oroto & another v Okello & 4 others", Case Analysis (2023). Environment & Land Case 56 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16368/eng@2023-03-23

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