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High CourtPartially AllowedPetition dated 16th August, 2019 (Notice of Motion dated 20th November, 2019)· [2020] KEHC 9598 (KLR)

IN AFRICA TRUST HAKI AFRICA & 19 others v THE HON ATTORNEY GENERAL & 6 others

High Court of Kenya
29 April 2020
EOE. K. O. Ogola
1,311 words in judgment
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The bottom line

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In Kenya, courts generally allow you to change your legal arguments during a case if the change is made in good faith and does not unfairly harm the opposing party.

What this practically means

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Executive summary

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This is an interlocutory ruling by the High Court at Mombasa (E. K. O. Ogola, J) on a Notice of Motion dated 20th November, 2019, in which the Petitioners sought leave to amend their Petition challenging the constitutionality of Section 40(c)(1) of the Prevention of Terrorism Act, 2012. The proposed amendment sought to add a ground demonstrating the unconstitutionality of the impugned law, specifically quoting the amendments made by the National Assembly, on the basis that the amendment process was unconstitutional as it was brought by an Omnibus Statute. The Petitioners, supported by the 1st and 3rd Interested Parties, argued the amendment introduced further legal argument, not new facts, and was in the interest of justice under Article 259(2)(d). The 1st, 2nd and 4th Respondents opposed, contending the amendment introduced a new cause of action and that the impugned law should be clear on the face of the Petition; the 3rd Respondent relied on Rule 19 of the Mutunga Rules, alleging prejudice. Applying Rule 18 of the Mutunga Rules and the principles in The Institute for Social Accountability case, the court held that amendments should be allowed unless frivolous or prejudicial, that multiplicity of suits should be avoided, and that the proposed amendments were made in good faith and would not unduly prejudice the Respondents, who would still have an opportunity to respond. The application was allowed as prayed with costs in the cause.

Key legal issues

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01

Whether leave to amend the Petition should be granted

Holding

The amendment was allowed because it was made in good faith, raised further legal argument rather than new facts, and would not unduly prejudice the Respondents who would still have opportunity to respond.

Reasoning

The court applied Rule 18 of the Mutunga Rules, which permits amendment with leave at any stage. It noted the general principle that amendments should be allowed unless frivolous or prejudicial, and that courts should avoid multiplicity of suits. It found the proposed amendments were made in good faith and would assist the court to conclusively deal with all matters raised, with prejudice compensable by costs.

p. 3

Legal principles established

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  • Amendment of a petition once filed can only be done with the permission of the court, and may be granted at any stage of the proceedings.

Court orders

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  1. 1.The application dated 20th November, 2019 for amendment of the petition is allowed as prayed with costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 259(2)(d)
  • Prevention of Terrorism ActSection 40(c)(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 18
  • Civil Procedure RulesSection 100 (as cited by counsel)

Cases cited (4)

  • The Institute for Social Accountability & Another vs. Parliament of Kenya & Two Others
    HCCP No 71 of 2013 [2014] eKLR

    Courts will normally allow amendment of pleadings at any stage if it can be done without injustice or prejudice, which prejudice can be compensated by costs.

  • Eastern Bakery v Castelino
    (1958) EA 461

    Referenced within the Institute for Social Accountability quote on amendment of pleadings.

  • Ochieng and Others v First National Bank Of Chicago
    CA Civil Appeal Number 149 of 1991

    Referenced within the Institute for Social Accountability quote on amendment of pleadings.

  • Kenyatta National Hospital v Kenya Commercial Bank Ltd & Another
    [2003] 2 EA

    Referenced within the Institute for Social Accountability quote on amendment of pleadings.

Jurisdiction invoked
Article 259(2)(d) of the Constitution; Rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga 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, "IN AFRICA TRUST HAKI AFRICA & 19 others v THE HON ATTORNEY GENERAL & 6 others", Case Analysis (2020). Petition dated 16th August, 2019 (Notice of Motion dated 20th November, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/9598/eng@2020-04-29

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