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ELCPartially AllowedPetition dated with notice of motion dated 8/05/2023 (not stated on the ruling)· [2025] KEELC 794 (KLR)

Machakos Wattlebark Co-operative v Cooperative Bank of Kenya Limited & another; Machakos Cooperative Union & 8 others (Intended Interested Party) (Environment & Land Petition 28 of 2015) [2025] KEELC 794 (KLR)

High Court of Kenya (not expressly named in the ruling)
25 February 2025
2,425 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Machakos High Court has confirmed that once judgment is delivered, Kenyan courts will not allow parties to amend pleadings, join new parties, or reopen cases.

What this practically means

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Executive summary

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This ruling by Hon. A. Y. Koross, Judge, at Machakos determined a notice of motion dated 8/05/2023 filed by the petitioner and the 1st intended interested party after judgment had been rendered in a fundamental rights petition concerning the sale of LR 1706/Konza IR 6609. The residual prayers sought leave for Musee Manyolo & Associates Advocates to come on record in place of B.M. Mungata & Co. Advocates, setting aside of the judgment and decree of 3/02/2022, joinder of the intended 1st IP as 2nd petitioner and the intended 2nd to 9th IPs as 3rd to 9th respondents, admission of an amended petition and new evidence, and costs. The 1st respondent opposed the motion as frivolous, raised inordinate delay, and argued the court was functus officio. The court first struck out both parties' submissions for breaching page-limit directions, guided by the Supreme Court decision in Okoiti. As preliminary issues, it noted the motion was improperly mounted jointly by the petitioner and an intended IP, and that it disclosed no grounds for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1, or for setting aside under Order 12 Rule 7. On the merits, the court held that pleadings cannot be amended post-judgment, and that intended interested parties cannot be joined post-judgment since joinder lies only in pending proceedings. Leave to come on record was, however, granted as Order 9 Rule 9 was complied with. Costs were awarded to the 1st respondent, borne by the petitioner, and the file was marked closed.

Key legal issues

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01

Whether a petition can be amended after judgment

Holding

No - amendment of pleadings is permissible at any stage of proceedings but only before judgment is delivered

Reasoning

Rule 18 of the Mutunga Rules permits amendment at any stage but with leave. Relying on the Court of Appeal in Kenya Commercial Bank Limited v Nicholas Ombija, the court held proceedings remain alive for amendment only until final judgment. Since judgment in this petition had already been rendered, amendment post-judgment was impermissible.

p. 4
02

Whether intended interested parties can be joined post-judgment

Holding

No - joinder can only occur in pending proceedings; with judgment rendered the suit is finally disposed of

Reasoning

Rule 5 of the Mutunga Rules permits joinder or substitution, and a petition is not defeated by non-joinder. But following JMK v MWM & MFS and Tang Gas Distributors Ltd v Said & Others, the power to add a party lapses once proceedings are finally disposed of and nothing more remains to be done. The dispute between petitioner and respondents had been resolved by the judgment.

p. 5
03

Whether incoming advocates could come on record post-judgment

Holding

Yes - the petitioner complied with Order 9 Rule 9 by filing the motion and serving the outgoing firm, so leave was granted

Reasoning

Order 9 Rule 9 requires a court order on notice or a consent between outgoing and incoming advocates for post-judgment change of counsel, aimed at preventing circumvention of fees. Having filed the motion and served M/s B.M. Mungata & Co. Advocates, the petitioner met the requirements and leave was granted.

p. 6
04

Whether the motion properly invoked review or setting aside

Holding

No - the motion was silent on grounds for review under Section 80 CPA and Order 45 Rule 1 CPR, and no Order 12 Rule 7 grounds for setting aside were advanced; the suit was heard on merits

Reasoning

The court noted preliminary defects: the motion was mounted jointly by the petitioner and an intended IP although distinct roles apply, and no grounds for review or setting aside were disclosed. Citing National Bank of Kenya Limited v Ndungu Njau, the court stressed that grounds for review must appear in the notice of motion itself.

p. 3

Legal principles established

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  • Amendment of pleadings may be done at any stage of proceedings but only before final judgment is rendered
  • Joinder or addition of parties under the equivalent of Order 1 Rule 10(2) can only take place where proceedings are still pending; once a suit is finally disposed of the rule is inapplicable
  • Post-judgment change of advocate requires an order of the court on application with notice to all parties, or a consent between the outgoing and incoming advocates (Order 9 Rule 9)
  • A notice of motion for review must disclose in its body the ground or grounds for review
  • Substantive reliefs are not available to an interested party; the adjudicative process is owned by the parties to the suit

Court orders

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  1. 1.Leave is granted to the law firm of Musee Manyolo & Associates Advocates to come on record as advocates of the petitioner
  2. 2.Costs are awarded to the 1st respondent which shall be borne by the petitioner
  3. 3.The file is effectively marked as closed
Jurisdiction invoked
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules (Rule 18 and Rule 5) - the underlying petition is a fundamental rights petition

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, "Machakos Wattlebark Co-operative v Cooperative Bank of Kenya Limited & another; Machakos Cooperative Union & 8 others (Intended Interested Party) (Environment & Land Petition 28 of 2015) [2025] KEELC 794 (KLR)", Case Analysis (2025). Petition dated with notice of motion dated 8/05/2023 (not stated on the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/794/eng@2025-02-25

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