[2017] KEELC 3823 (KLR)
The court held that the applicants amended their application dated 22/3/2017 without obtaining leave of court as required by Order 8 Rule 5 of the Civil Procedure Rules 2010. The applicants failed to address this procedural defect in their submissions. The court found that allowing parties to amend documents at will...
Source-derived case information.
- Citation
- [2017] KEELC 3823 (KLR)
- Parties
- Plaintiff: Christoper Shivambo Karamoja; Plaintiff: Francis Mose Masese; Plaintiff: Rachel Wanjiru Mwaura (as the personal representative of Jidraph Ndungu Mwaura, deceased); Defendant: Jane Njeri; Defendant: Joseph K. Kiiru (as the personal representative of Elizabeth Wanjiru Karanja, deceased); Defendant: Monica Njeri Nganga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 104 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection Regarding Amendment of Application Without Leave
- Outcome
- Amended application struck out with costs to the respondents.
- Judges
- FM Njoroge
- Legal Topics
- Amendment of Pleadings, Leave of Court, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Christoper Shivambo Karamoja
Plaintiff
Francis Mose Masese
Plaintiff
Rachel Wanjiru Mwaura (as the personal representative of Jidraph Ndungu Mwaura, deceased)
Plaintiff
Jane Njeri
Defendant
Joseph K. Kiiru (as the personal representative of Elizabeth Wanjiru Karanja, deceased)
Defendant
Monica Njeri Nganga
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection Regarding Amendment of Application Without Leave
Legal Issues
- 1 Whether the applicants amended their application dated 22/3/2017 without leave of court contrary to the Civil Procedure Rules.
- 2 Whether the amended application is properly before the court and should be considered on its merits.
Ratio Decidendi
The court held that the applicants amended their application dated 22/3/2017 without obtaining leave of court as required by Order 8 Rule 5 of the Civil Procedure Rules 2010. The applicants failed to address this procedural defect in their submissions. The court found that allowing parties to amend documents at will without leave would undermine judicial control over proceedings. Relying on the cited authorities, the court concluded that the amended application was improperly before it and must be struck out with costs to the respondents.
Court Disposition
Amended application struck out with costs to the respondents.
Orders
- The amended application dated 3/5/2017 is struck out with costs to the respondents.
- The Notice of Motion dated 3/9/2008 is also struck out but with no orders as to costs.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
ENVIRONMENT AND LAND COURT
KTL ELC MISC CIVIL APPLICATION N0. 104 OF 2005
CHRISTOPER SHIVAMBO KARAMOJA...............1ST PLAINTIFF
FRANCIS MOSE MASESE....................................2ND PLAINTIFF
RACHEL WANJIRU MWAURA(AS THE PERSONAL
REPRESENTATIVE OF JIDRAPH NDUNGU
MWAURA (DECEASED).........................................3RD PLAINTIFF
VERSUS
JANE NJERI.........................................................1ST DEFENDANT
JOSEPH K. KIIRU(AS THE PERSONAL REPRESENTATIVE OF
ELIZABETH WANJIRU KARANJA(DECEASED)..2NDDEFENDANT
MONICA NJERI NGANGA.........................................3RD DEFENDANT
R U L I N G
1. The applicants filed an application dated 22/3/2017. It was amended later. The amended application was filed on 3/5/2017. There is an objection by the respondents that the applicants never applied for leave to amend their application dated 22/3/17.
2. I must deal with this as a preliminary issue before considering any other issue.The record before me states that on 10/4/17, an application dated 22/3/17 was brought before this court and it was ordered that the application be served upon the respondents within 7 days and that an appropriate date be taken at the registry.
3. On 11/4/2017, the application dated 22/3/17 was fixed for hearing on 13/6/17. It was not heard on 13/6/17. On that day the application was fixed for hearing on 27/6/2017. On 27/6/2017, Mr. Samba appeared before court and stated that he had amended the application on 1/5/2017. The court certified the application urgent and granted prayer 3A thereof pending inter-partes hearing on 11/7/17. The issue of how the amendment came about was not addressed then. On 11/7/2017 the court ordered that the parties should file their submissions on the application and highlight them on 27/7/2017. Interim orders were extended. On the latter date, parties adopted their submissions.
4. The issue at hand that is whether the application dated 22/3/2017 was amended with or without leave of court, was raised, by the respondents in Reply and Submission.
5. The respondents urged that under Order 8 of the Civil Procedure Rules 2010, a party can amend its plaint defence or reply to defencebefore the close of pleadings without leave of court and that under Order 1 rule 5 of the Civil Procedure Rules 2010, a party can amend its plaint, defence or reply to defence before the close of pleadings without leave of court and that under Order 8 Rule 5 of the Civil Procedure Rules, a party who intends to amend any document proceedings or any other court process must seek leave of court. The Respondents cite the cases of Frederick Mwangi Nyaga –vs- Garam Investments & Another 2013 eKLR George K. Kimani & 5 Others -vs- County Government of Trans Nzoia 2014 eKLR and Avanti -vs- JaswantVohora 2008 eKLR.
6. The issue is not specifically addressed by the applicants in their submissions nor was it replied to when it was raised. I agree with the court in the case of Avanti quoted by the respondents, when it states as follows:-
“Moreover the appellant, having purported to amend the original motion the same was no longer available for hearing as he could only proceed with the amended motion. Secondly, no leave having been obtained from the court for amendment of the original motion the Amended Notice of Motion was improperly before the court. To that extent, the appellants amended Notice of motion is incompetent and ought to be struck out on that ground alone.”
7. In the quoted Avanti case the appellant had filed an original Notice of Motion on 4/9/2008 an amended Notice of Motion on 9/9/2008. The original Notice of Motion that had been scheduled for hearing on 8/9/2008 did not come up for hearing on that date, instead the appellant filed an amended Notice of Motion under Certificate of urgency just as in the instant case, and interim orders, were issued just as was done in the instant case. At the hearing Counsel for the appellant purported to argue the original Notice of Motion filed on 4/9/2008. That is the action that prompted the court to observe as per the passage cited above.
8. I find that to allow parties to amend documents at will without leave of court would remove the process from the control of the court. I find that the amended Motion is improperly before this court. The same is struck out with costs to the respondents. The Notice of Motion dated 3/9/2008 is also struck out but with no orders as to costs.
Dated, signed and delivered at Kitale on this 24thday of August, 2017.
MWANGI NJOROGE
JUDGE
24/8/2017
Before - Mwangi Njoroge Judge
Court Assistant – Isabellah/Picoty
Ms. Sitati holding brief for Samba for Applicants
Ms. Oketch holding brief for Mr. Githumbi for Defendants/respondents
Ruling read in open court.
MWANGI NJOROGE
JUDGE
24/8/2017