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ELCAllowedNot stated in judgment (Notice of Motion dated 30th October, 2023)· [2024] KEELC 3693 (KLR)

Kaunga alias John Kirimi v District Land Adjudication Officer Igembe & 4 others (Judicial Review Application E003 of 2023) [2024] KEELC 3693 (KLR)

Environment and Land Court
15 February 2024
CYC. Yano
823 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed you can fix names or parties in an ongoing case before judgment, as long as nobody is unfairly prejudiced.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Meru on a notice of motion dated 30th October 2023 brought by the ex-parte applicant, Domiciano Kaunga, under Order 8 Rule 3 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking leave to amend his Notice of Motion dated 22nd August 2023 in a judicial review matter. The proposed amendments sought to correct the applicant's name to read 'Domiciano Kaunga alias John Kirimi' and to substitute the 2nd respondent to read 'Deputy County Commissioner Igembe Central' in place of 'Director Lands Adjudication'. The applicant argued the amendments were necessary to determine the real questions in controversy, would avoid multiplicity of suits, and would prejudice no party, who would have an opportunity to respond. The application was unopposed; the respondents' and interested party's submissions addressed the substantive motion, not this application. The court, per Hon. C. Yano, ELC Judge, examined Section 100 of the Civil Procedure Act and Order 8 rules 3(5) and 5, holding that the court has a discretionary power, exercisable judiciously, to allow amendments at any stage before judgment, even where a new cause of action arises from the same facts. Finding no prejudice and judgment pending, the court allowed the application in terms of prayers 1 and 2, directed the applicant to file and serve the amended motion within 7 days, allowed the respondents and interested party 14 days to respond, and ordered that costs of the application abide the outcome of the substantive motion.

Key legal issues

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01

Whether leave to amend a Notice of Motion before judgment should be granted

Holding

Leave was granted; the amendments (correcting the applicant's alias name and substituting the 2nd respondent) did not change the substance of the suit and would not prejudice any party.

Reasoning

The general power to amend is donated by Section 100 of the Civil Procedure Act and Order 8 rule 5, which permits amendment to determine the real question in controversy even where a new cause of action arises from the same facts. Judgment had not been delivered. The court held the amendments were necessary for determining the real issues and that parties could respond to the amended motion, so no prejudice would result.

p. 3

Legal principles established

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  • The court has discretionary power to allow amendment of pleadings at any stage before judgment, even where the amendment adds a new cause of action, provided the discretion is exercised judiciously and no prejudice is occasioned.

Court orders

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  1. 1.The application is allowed in terms of prayers 1 and 2
  2. 2.The applicant to file and serve the amended notice of motion within 7 days from the date of this ruling
  3. 3.The respondents and interested party to file and serve their responses to the amended motion and other documents within 14 days of service by the applicant
  4. 4.Costs of the application to abide the outcome of the substantive motion

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 8 rule 5(1) and (2)
  • Civil Procedure RulesOrder 8 rule 3(5)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure ActSection 100

Cases cited (4)

  • Republic v Land Disputes Tribunal Meru Central District
    [2009] eKLR
  • Commissioner of Ands v Hotel Kunste Limited
    Court of Appeal 234 of 2995 (as printed)
  • Eastern Bakery v Castelino
    [1958] EA 461
  • Peter M. Echarai v Priscilla N. Echarai
    [1998] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 8 Rule 3 of the Civil Procedure Rules; inherent jurisdiction to allow amendments (Section 100 Civil Procedure Act, Order 8 rule 5)

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, "Kaunga alias John Kirimi v District Land Adjudication Officer Igembe & 4 others (Judicial Review Application E003 of 2023) [2024] KEELC 3693 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 30th October, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3693/eng@2024-02-15

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