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ELCPartially AllowedJudicial Review proceedings, Kilgoris (Notice of Motion dated 17th June 2025)· [2026] KEELC 281 (KLR)

Republic v Advocates Complaints Commission & 2 others; Omwanza (Ex parte Applicant) (Judicial Review Miscellaneous Application E003 of 2024) [2026] KEELC 281 (KLR)

High Court of Kenya
29 January 2026
2,149 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court allowed a judicial review applicant to amend his case to add new grounds, but refused to amend a spent leave application.

What this practically means

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Executive summary

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This ruling of the High Court at Kilgoris (M.N. Mwanyale, J) determined a Notice of Motion dated 17th June 2025 in which the Exparte Applicant sought leave to amend his Chamber Summons dated 5th November 2024, the Statement of Facts dated 5th November 2024 and the substantive Notice of Motion dated 7th November 2024 in an ongoing judicial review application, with liberty to file and serve amended pleadings. The judicial review challenged proceedings before the Advocates Complaints Commission (the 1st Respondent) relating to a complaint by the 2nd and 3rd Respondents, Esikar Gardens and Hotels Limited and Mr. Charles Taleng'o Sunkuli, concerning a Kshs.10,000,000 deposit, a completion notice and a title held on a stakeholder basis. The 2nd and 3rd Respondents opposed, arguing the sub-judice ground was overtaken by events following a ruling of 27th January 2025 dismissing a joinder application, and that jurisdiction over abuse of process complaints lies with the ACC under section 53 of the Advocates Act. The court framed three issues: merit of the amendment, reliefs and costs. Applying section 100 of the Civil Procedure Act, Order 8 Rule 5, Order 53 Rule 4(2) and the authorities of KRA v Silvano Orema Owakitta Marenga Filing Station and Republic v Chief Magistrates Court Nairobi Exparte Geft Koinange, the court held that amendment of the statement of facts and substantive motion was permissible since the relief of certiorari was unchanged and no prejudice would be occasioned. The application was allowed in part: leave granted to amend the statement of facts and Notice of Motion, but denied in respect of the Chamber Summons, which was spent. Timelines for filing amended documents and replies were set, with mention on 18.03.2026, and costs in the cause.

Key legal issues

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01

Whether it is procedural to amend a substantive Notice of Motion and statement of facts in judicial review proceedings

Holding

It is procedural to amend the statement of facts and the substantive Notice of Motion under Order 53 Rule 4(2) of the Civil Procedure Rules, but not the Chamber Summons for leave, which is spent once leave is granted

Reasoning

The court held that once leave is applied for and granted, it is granted on the specific grounds in the leave application and statutory statement. Order 53 Rule 4(2) permits amendment of the statutory statement on the hearing of the motion. Since the relief sought in the draft amended motion (certiorari) was the same as in the chamber summons granting leave, amendment of the statement of facts and motion was permissible; the chamber summons itself, having served its purpose, was spent.

p. 5
02

Whether the proposed amendments introduce a new cause of action and occasion prejudice

Holding

The amendments do not introduce a new cause of action since the relief of certiorari remains the same, and no prejudice is occasioned as the Respondents will have an opportunity to respond to the amended Notice of Motion

Reasoning

The court noted the draft amended motion adds a new title and two additional grounds on abuse of process and collateral purpose, but the relief sought (certiorari) is unchanged from that in respect of which leave was initially obtained. Amendments are ordinarily allowable under section 100 of the Civil Procedure Act to bring out the real issues in controversy. Since the 2nd and 3rd Respondents will be given an opportunity to respond to the amended motion, no prejudice results.

p. 4

Legal principles established

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  • A substantive Notice of Motion in judicial review cannot be amended in vacuum; the amendment must commence from the statement of facts/statutory statement, since reliefs and grounds must be contained in the statutory statement unless leave to amend it is sought
  • A Chamber Summons for leave to commence judicial review is spent once leave is granted and cannot be amended

Court orders

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  1. 1.Prayer 1 of the application allowed in part - leave granted to amend the statement of facts dated 5th November 2024 and the Notice of Motion dated 7th November 2024
  2. 2.Leave to amend the Chamber Summons dated 5th November 2024 denied as it is spent
  3. 3.Exparte Applicant to file the Amended statement of facts and Notice of Motion within 21 days
  4. 4.Respondents to file and serve their Replying affidavit within 21 days after service of the Amended Notice of Motion
  5. 5.Mention on 18.03.2026 for further directions
  6. 6.Costs in the cause
Jurisdiction invoked
Order 53 Rule 4(2) of the Civil Procedure Rules and Section 100 of the Civil Procedure Act

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, "Republic v Advocates Complaints Commission & 2 others; Omwanza (Ex parte Applicant) (Judicial Review Miscellaneous Application E003 of 2024) [2026] KEELC 281 (KLR)", Case Analysis (2026). Judicial Review proceedings, Kilgoris (Notice of Motion dated 17th June 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/281/eng@2026-01-29

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