REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KITALE PETITION NO.1 OF 2017 LOWKWAWI LORIMOWI................................................1ST PETITIONER ROBERT EKAI LOTARUK...............................................2ND PETITIONER LOYEN ELUBIT..................................................................3RD PETITIONER LOLIM NAKUWA...............................................................4TH PETITIONER NABEI ELUBIT...................................................................5TH PETITIONER ISWENENE ELEBIT..........................................................6TH PETITIONER NGIKENOI ELUBI.............................................................7TH PETITIONER TOBIA AGERIO................................................................8TH PETITIONER ELUBIT LOMUMOWI.......................................................9TH PETITIONER ELOMASE ELUBIT.........................................................10TH PETITIONER LOSIL ELUBIT................................................................11TH PETITIONER NAREGAE LOLIM..........................................................12TH PETITIONER MARKO NABEI...............................................................13TH PETITIONER KAMARET LOKIM..........................................................14TH PETITIONER AWESIT LORUMOWI....................................................15TH PETITIONER ANYAMAN LORIMOWI...................................................16TH PETITIONER AKINYOKORI LORIMOWI..............................................17TH PETITIONER LOGWAWI LORIMOWI..................................................18TH PETITIONER
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EPUNGURE ALASU.......................................................19TH PETITIONER KOLOI LOKWAWI........................................................20TH PETITIONER MAGRET ISUKETE........................................................21ST PETITIONER LOPERITO LOKWAWI.................................................22ND PETITIONER LOTUKGI EVAN............................................................23RD PETITIONER ASINYEN ESURON.......................................................24TH PETITIONER NAMUKE LOCHO..........................................................25TH PETITIONER KOLOI AKORI................................................................26TH PETITIONER JOHN LOYARUK............................................................27TH PETITIONER NAHASHON LOTARUK................................................28TH PETITIONER ROBERT LOTELENGO..................................................29TH PETITIONER PETER LOLIM.................................................................30TH PETITIONER VERSUS TULLOW OIL (K) LTD...................................................1ST RESPONDENT COUNTY COMMISSIONER TURKANA COUNTY......2ND RESPONDENT AND THE HONORABLE ATTORNEY GENERAL.....1STINTERESTED PARTY MINISTRY OF ENERGY & PETROLEUM........2ND INTERESTED PARTY RULING 1. The application dated 10/3/2017 came up for highlighting of submissions this morning. When he stood to address the court Mr. Bosek for the Petitioners applied to orally amend a number of documents so that where the Mining Act 2016 had been mentioned, it would be substituted with the Petroleum (Exploration and Production) Act Cap 308. The counsel for the Applicant urged the court to consider that as at the time of filing of the applicants’ submissions the error had been identified and in those submissions, the proper Act had been cited instead of the Mining Act 2016. He urged that there is no need to make a formal application and that it is just that the oral application be allowed. 2. On his part, Mr. Eredi who appears for the 2 nd Respondent and holds brief for Mr. Wetangula for the 1st Respondent, and also appears for the Interested Parties, urged that it is an unfair application in that it goes to the root of the defence. He urged that the Applicants application was made after the Applicants saw the Respondents submissions in which the Respondents stated that the applicable Act was the Petroleum (Exploration and Production) Act. Mr. Eredi admits the Constitution allows for substantive justice rather than technicalities. He urges the court to decline the amendment application.
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3. I note that both opposing sides have filed their submissions. The Applicant has taken inordinately long to bring the application for amendment. It may be as well that the Respondents and the Interested Parties have been misled to rely on the pleadings as they are in making their responses. However I agree that Article 159 2(d) emphasizes on substantive justice rather than procedural technicalities. 4. Is the issue at hand a mere procedural technicality? In my view, it is not. I find that reliance on one statute is not a mere issue of procedure, but of the strength, the substance of the case that one believes in, and when a party has had as long as the Applicant has to effect the appropriate amendment, he should not be allowed to ambush their adversary on the day of the hearing by relying on other Acts of Parliament. The most appealing thing to do in the circumstances is to decline the amendments proposed and hear the counsel on the substance, bearing in mind that any party’s case is normally based on their pleadings. In my view it is too late to make any amendments to the substantive pleadings at the moment and the application is hereby declined. Dated, signed and delivered at Kitale on this 16th day of October, 2017. MWANGI NJOROGE JUDGE COURT Ruling read in open court in the presence of Mr. Eredi for the 2nd Respondent and Interested Parties (also holding brief for Mr. Wetangula for the 1st Respondent) and Mr. Bosek for the Petitioners. Court Assistant – Isabellah. MWANGI NJOROGE JUDGE 16/10/2017
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