Ethics and Anti-Corruption Commission v Kaitui Enterprises Company Limited & 2 others (Environment & Land Case 29 of 2019) [2024] KEELC 1073 (KLR)
The bottom line
#A Kenyan court refused a church body's last-minute attempt to change its defence, delay a trial, and gag the media.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to amend the defence and introduce a counterclaim should be granted at a late stage
Leave refused; the delay was unexplained, prior extensions were not complied with, and the application was made in bad faith four days before hearing
The Court traced the procedural history: the defence was filed in December 2019, but the 2nd Defendant repeatedly failed to comply with directions to file documents, sought amendment only after pleadings closed, and filed a first amendment application four days before the hearing date. Applying the principles in the cited authorities, the Court held that delay must be satisfactorily explained and that the timing of the application showed an intent to delay the hearing rather than good faith. No prejudice balance favoured the applicant.
Whether the proceedings of 13th February 2023 should be set aside and the suit heard de novo
Refused; the trial had properly commenced and the dismissal of the amendment application removed the basis for setting aside
The hearing of 13th February 2023 went ahead after the Court declined an adjournment sought on the strength of a prior amendment application; the Plaintiff called two witnesses who were cross-examined. Since the application for leave to amend failed for want of merit and good faith, there was no foundation for disturbing the proceedings or ordering a fresh hearing. The setting-aside and de novo orders were consequential on the refused amendment.
Whether the media should be barred from covering the proceedings
Refused; the applicant adduced no evidence of misreporting in its Supporting Affidavit
Although the application alleged media misreporting capable of prejudicing the defence and intimidating witnesses, the Supporting Affidavit of Mark Gitonga Mathenge contained no particulars of when or how the media had misreported the proceedings. A gag order restraining publication touches on open justice and fair hearing rights, and cannot issue on bare assertion. The relief was therefore not justified.
Legal principles established
#- Amendments to pleadings should be timeously applied for and any delay satisfactorily explained; amendments will be allowed only where made in good faith and without injustice to the other side
- An order restraining media coverage of court proceedings requires justification, which must be supported by evidence
Court orders
#- 1.The Notice of Motion dated 10th March 2023 is dismissed
- 2.Costs of the application awarded to the Plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit; application brought under the Civil Procedure Act and Civil Procedure Rules (specific provisions not stated)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v Kaitui Enterprises Company Limited & 2 others (Environment & Land Case 29 of 2019) [2024] KEELC 1073 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1073/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.