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ELCAllowedNot stated in the judgment· [2024] KEELC 4222 (KLR)

Mbaraka & 8 others v Kenya Electricity Transmission Co Ltd & 2 others; Mogo & another (Interested Parties) (Environment & Land Petition 9 of 2021) [2024] KEELC 4222 (KLR)

Environment and Land Court
15 May 2024
MNMwangi Njoroge
1,560 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court allowed a party to fix a mistake in its contempt case, as long as no one is unfairly prejudiced.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Malindi (Mwangi Njoroge, J) determines a Notice of Motion dated 19th December 2023 by the 1st Interested Party, seeking leave to amend a contempt application dated 26th October 2023. The contempt application arose from the 1st Respondent's failure to comply with orders of 14th March 2023 requiring deposit of compensation for loss of land use into a special interest-earning account held by the 3rd Respondent. The 1st Interested Party explained that it had inadvertently omitted the 1st Respondent's name from the orders sought and wished also to add an alternative prayer for a fine for contempt. The 1st Respondent opposed, arguing the amendments were precipitated by its replying affidavit of 28th November 2023, were aimed at curing procedural loopholes, and would prejudice and frustrate it. Both parties filed submissions and relied on authorities on the principles governing amendments. The court framed one issue: whether the 1st Interested Party met the threshold for the orders sought. Guided by Section 100 of the Civil Procedure Act and Order 8 rule 5(1) of the Civil Procedure Rules, and Halsbury's Laws of England, the court held that the amendments did not change the cause of action but only repaired an omission, and that the 1st Respondent had neither demonstrated prejudice nor identified the alleged loopholes. The court allowed prayer 1, directed filing and service of the amended motion within 7 days with responses within a further 7 days, and awarded costs of the application to the 1st Respondent, to be borne by the applicant. The court stressed that the applicant must still prove contempt to the required standard before any substantive orders issue.

Key legal issues

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01

Whether leave to amend the contempt application should be granted

Holding

The application dated 19th December 2023 is allowed; the amendments merely repair an omission and occasion no demonstrated prejudice.

Reasoning

The court applied Section 100 of the Civil Procedure Act and Order 8 rule 5(1), which permit amendment to determine the real question in controversy. Examining the proposed amendments against the orders allegedly disobeyed, the court found they introduced no new cause of action. The 1st Respondent neither demonstrated prejudice nor identified the alleged loopholes in law and procedure. The applicant must still prove contempt to the required standard before substantive orders can issue.

p. 4

Legal principles established

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  • An amendment that does not change the cause of action but only repairs an omission may be allowed where no prejudice is demonstrated by the opposing party.

Court orders

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  1. 1.Leave granted to the 1st Interested Party to amend the notice of motion dated 26th October 2023 in terms of the amended notice of motion dated 19th December 2023 (prayer 1)
  2. 2.The amended notice of motion to be filed and served upon the other parties within 7 days from the date of the order
  3. 3.The other parties may respond to the amended notice of motion within 7 days of service
  4. 4.Costs of the application awarded to the 1st Respondent, to be borne by the applicant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 100
  • Civil Procedure RulesOrder 8 rule 3, Order 8 rule 5(1), Order 51 rule 1
  • Constitution of KenyaArticle 159(2)

Cases cited (7)

  • Diamond Trust Bank Kenya Limited v Invesco Assurance Company Limited & another
    [2021] eKLR
  • Central Kenya Limited v Trust Bank Limited
    [2000] 2 EA 365
  • Ngong Butchers Cooperative Society Limited v Patrick Kabue Muchene
    [2021] eKLR
  • Malakwen Arap Chobe (suing as the administrator as litem of the estate of Kipchobe Arap Murgor) v David Mibei
    [2022] eKLR
  • Ochieng and Others v National Bank of Chicago
    Civil Appeal No. 147 of 1991
  • Tildesley v Harper
    [1878] 10 Ch.D 393
  • Eastern Bakery v Castelino
    [1958] E.A 461
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 8 rule 3 and Order 51 rule 1 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, "Mbaraka & 8 others v Kenya Electricity Transmission Co Ltd & 2 others; Mogo & another (Interested Parties) (Environment & Land Petition 9 of 2021) [2024] KEELC 4222 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4222/eng@2024-05-15

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