Garissa Mattresses Limited v Wamwandu & 5 others (Environment and Land Case 316 of 2014) (20 February 2026) (Directions) [2026] KEELC 1181 (KLR)

4. That there is need that the Applicant is allowed to amend the Application for ends of justice to be met and that Section 100 of the Civil Procedure Act allows the Court to correct clerical mistakes in pleadings at any stage including after judgments, rulings, or orders. 5. The applicant contends that it is in the interest of justice that the Applicant be allowed to correct these grave omissions to avoid litigation and to ensure the Court acts on accurate pleadings. That no prejudice will be sufiered by the Respondent if these orders are granted, as this is to ensure the 6. substantive issues are heard on merit and that it is imperative to exercise the Court's discretion under the "Oxygen o Principle to avoid over-reliance on technicalities that would result in a miscarriage of justice. Which application is supported by the Afidavit of Joyce Chesaro an advocate of the High Court of Kenya. She reiterates the grounds of the application. 7. The gravamen of the applicant’s submissions is that section 100 of the Civil Procedure Act allows amendment of a notice of motion. The applicant further relies on Article 159 of the Constitution of Kenya 2010. The applicant urges this court to apply the Oxygen Principle and to grant the application. Mrs Chesaro, learned counsel for the applicant argues that section 1A and 1B gives this court the discretion to exercise it judicial powers to do justice. 8. Mr Oluga, learned counsel for the respondent argues that a notice of motion is not a pleading and therefore it cannot be amended. He cites the decision by Justice Sifuna in the case of Jaribu Credit where he held that a notice of motion cannot be amended. 9. I have considered the application and the rival submissions and do find that a notice of motion is not a pleading submitted by Mr Oluga learned counsel for the respondent and therefore cannot be amended as a pleading, however, I do agree with Mrs Chesaro that a notice of motion can be amended as a proceeding before the court. 10. In the case of Peter M. Echaria v. Priscilla N. Echaria (1998) eKLR . The Court of Appeal observed:“We agree that the notice of motion is defective but the defect is curable, and, for that reason, and ms. Karua having applied for leave to amend the notice of motion, we grant leave for the respondent to amend the notice of motion so as to comply with the requirements of Rule 42(1) of the Rules of the Court.” 11. In Fredrick Mwangi nyaga v. Garam Investments & Another (2013) e KLR at page 5 and 6 Havelock J., stated:“ with respect, I do not consider that learned counsel for the defendant has read the above provision entirely. The second sentence after the word “or” allows the correction of any defect or error in any proceedings. In my view, a Notice of Motion is part of the proceedings of a suit. I do not consider that the power to amend a proceeding is confined solely for the purposes of determining the real question of controversy between the parties. As a consequence, I agree with counsel for the Plaintifi when he says that this provision of Order 8 rule 5 allows this court to consider an application for amendment to (in this case), the plaintifi’s Notice of Motion dated 14th June, 2013. I believe that the decision in Echaria v. Echaria case (supra) is binding upon this court with the slight reservation that the application to amend the Notice of Motion before that Court was brought under the Court of appeal Rules. However, I do not consider that the provision under which the applicatoion is brought would make any difierence to my finding as above. As a consequence of all the above, I find that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1181/eng@2026-02-20 2

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12. although this court has power to allow an amendment to the plaintifi’s said notice of motion dated 14th June, 2013 under the provisions of Order 8 Rule 5 as well as Section 100 of the Civil Procedure Act, the fact that the plaintifi has breached Rule 9 as I see it, his only option is withdraw the same and file a fresh application.” 13. In determining the question as to whether an application may be amended, I am persuaded by the sentiments of Havelock J., cited hereinabove and those of Omondi J., in the case of Samwel Barkoiyet Kangogo & 3 others vs. Daniel Ndung’u (2009) eKLR where she stated:“ My considered view is that the court has a duty to ensure the ends of justice are met and that Section 3A gives this court wide discretion for that purpose. I have a duty to put a stop to such 14. mischief and rule that the misheading of the application to read chamber summons instead of notice of Motion causes no prejudice to the respondent and under section 100 Civil Procedure Act, I amend the title to read Notice of Motion.” 15. Having determined that this court has power under Sections 3A, 100 and Order 8 Rule 5 of the Civil Procedure Act and Rules respectively, the issue to determine is whether there is any reasonable 16. cause for denying the amendment herein sought. The respondent has not demonstrated any prejudice to be sufiered if amendment is granted. 17. The upshot of the above is that the application for amendment of the notice of motion dated 3rd March 2025 is granted. The same to be filed within 2 days. RULING DATED, SIGNED AND DELIVERED AT MOMBASA VIRTUALLY ON THE 20TH FEBRUARY 2026. Signed by/for: HON. JUSTICE ANTONY O. OMBWAYO MOMBASA ENVIRONMENT AND LAND COURT ENVIRONMENT AND LAND COURT https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1181/eng@2026-02-20 3

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