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ELCDismissedEnvironment & Land Case 219 of 2020· [2023] KEELC 18322 (KLR)

Karomo & another (Suing as the Chairman and Secretary, respectively of the New Nyali Residents Association) & 3 others v Pamwhite Limited & another

Environment and Land Court of Kenya
20 June 2023
NMN. A. Matheka
3,220 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to strike out amended pleadings filed without leave, holding that justice outweighs procedural technicality where no real prejudice results.

What this practically means

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Executive summary

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The 1st Defendant, Pamwhite Limited, moved the court by notice of motion dated November 16, 2022 under Orders 2 Rule 15(1), 8 Rules 2 & 3 and 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 34 and 63(e) of the Civil Procedure Act, seeking to strike out the Plaintiffs' Amended Plaint dated December 21, 2020 and Further Amended Plaint dated January 22, 2021 on the ground that they were filed without leave of the court and were scandalous, frivolous, vexatious, prejudicial and an abuse of process. The suit challenges the legality of approval No P/2020/201 issued by the County Government of Mombasa for a commercial development on Plot No MN/I/3156. The Plaintiffs opposed, arguing the amendments were filed before pleadings closed, that the application was brought after an inordinate delay of one year and eleven months, and that no prejudice would be suffered. The court found that, strictly, pleadings closed on December 29, 2020 following the filing of a replying affidavit, so later pleadings required leave. However, applying the overriding objective, Article 159 and the authorities on amendments, it held that striking out is an extreme measure reserved for the clearest of cases, that no prejudice would be suffered by the Defendant, and that the amendments should be allowed. The application dated November 16, 2022 was dismissed with costs.

Key legal issues

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01

Whether leave of court was required to file the Amended and Further Amended Plaints

Holding

Strictly speaking, pleadings had closed by December 29, 2020, so pleadings filed thereafter required leave; however the court exercised its discretion to allow the amendments in the interest of justice

Reasoning

The court found the replying affidavit was filed December 15, 2020, so pleadings should ideally have closed 14 days later. The Statement of Defence was filed February 18, 2021, after the Further Amended Plaint. Strictly, all pleadings filed after closure required leave, but the court declined to strike them out.

02

Whether the Amended and Further Amended Plaints should be struck out for want of leave

Holding

No. Striking out is an extreme measure; no prejudice would be suffered by the defendant and the overriding objective favours determination of the real issues in controversy

Reasoning

Relying on Sir Ali Bin Salim Primary School, D.T. Dobie, Salat and Central Kenya Ltd, the court held that amendments should be freely allowed where no uncompensable prejudice results, procedural infractions without injurious prejudice are not invalidating, and Article 159 requires justice without undue regard to technicalities.

p. 5

Legal principles established

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  • Striking out a pleading filed out of time is an extreme measure resorted to only in the clearest of cases involving abuse of court process
  • A procedural infraction causing no injurious prejudice should not have an invalidating effect; justice is not sacrificed on the altar of procedural technicality
  • Amendments should be freely allowed at any stage provided no prejudice or injustice not compensable in costs results

Court orders

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  1. 1.The Amended Plaint and Further Amended Plaint are allowed to remain on record
  2. 2.The application dated November 16, 2022 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 34, 63(e)
  • Civil Procedure Rules, 2010Order 2 Rule 13, Order 2 Rule 15(1), Order 8 Rule 1(1), Order 8 Rule 2, Order 8 Rule 3, Order 8 Rule 5, Order 51 Rule 1
  • Constitution of Kenya, 2010Article 159

Cases cited (9)

  • Chairman, Secretary and Treasurer, School Management Committee of Sir Ali Bin Salim Primary School & Another v Francis Bahati Diwani & 2 others

    Striking out a pleading filed out of time is an extreme measure resorted to in the clearest of cases

  • D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    (1980) eKLR

    A court should aim at sustaining a suit rather than terminating it by summary dismissal

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & others
    (2013) eKLR

    Procedural infractions causing no injurious prejudice should not have an invalidating effect

  • Central Kenya Ltd v Trust Bank & 4 Others
    CA No 222 of 1998

    Amendments should be freely allowed provided no prejudice or injustice not compensable in costs

  • AAT Holdings Limited v Diamond Shields International Ltd
    (2014) eKLR

    Principles governing amendment of pleadings

  • Isaac Awuondo v Surgipharm Ltd & Another
    (2011) eKLR

    One bona fide triable issue suffices; citing Moi University v Vishva Builders Ltd

  • Moi University v Vishva Builders Limited
    Civil Appeal No 296 of 2004 (unreported)

    If the defence raises even one bona fide triable issue, the defendant must be given leave to defend

  • HD Hasmani v Banque Du Congo Belge
    (1938) 5 EACA 89

    Even one triable issue would be sufficient

  • Patel v EA Cargo Handling Services Ltd
    [1974] EA 75

    A triable issue raises a prima facie defence which should go to trial

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application under Orders 2 Rule 15(1), 8 Rules 2 & 3 and 51 Rule 1 and Sections 1A, 1B, 34 & 63(e) of the Civil Procedure Act (Cap 21)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Karomo & another (Suing as the Chairman and Secretary, respectively of the New Nyali Residents Association) & 3 others v Pamwhite Limited & another", Case Analysis (2023). Environment & Land Case 219 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18322/eng@2023-06-20

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