[2019] KEELC 2244 (KLR)
The court held that the applicant's request to amend the heading of the motion from Constitutional Application to Miscellaneous Application could not be granted because such an amendment would fundamentally alter the cause of action and prejudice the respondent, who had already responded to the original pleadings....
Source-derived case information.
- Citation
- [2019] KEELC 2244 (KLR)
- Parties
- Applicant: Gladwel Nyambura Chege; Applicant: Julia Waithira Mbugua; Respondent: Jecinta Wanjiru Muniu; Respondent: Senior Principal Magistrate’s Court Wang’uru; Respondent: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 109 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Pleadings
- Outcome
- application dismissed with costs
- Legal Topics
- Amendment of Pleadings, Choice of Track, Prejudice to Parties, Withdrawal and Fresh Filing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gladwel Nyambura Chege
Applicant
Julia Waithira Mbugua
Applicant
Jecinta Wanjiru Muniu
Respondent
Senior Principal Magistrate’s Court Wang’uru
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Amend Pleadings
Legal Issues
- 1 Whether the applicant should be granted leave to amend the heading of the motion from Constitutional Application to Miscellaneous Application.
- 2 Whether such amendment would fundamentally change the cause of action and prejudice the respondent.
Ratio Decidendi
The court held that the applicant's request to amend the heading of the motion from Constitutional Application to Miscellaneous Application could not be granted because such an amendment would fundamentally alter the cause of action and prejudice the respondent, who had already responded to the original pleadings. The proper procedure for changing the track of a suit is to withdraw the current suit and file a fresh one under the appropriate track, not to amend the existing pleadings. The application was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application dated 27th February 2019 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA
MISC. APPLICATION NO. 109 OF 2017 (O.S)
GLADWEL NYAMBURA CHEGE
JULIA WAITHIRA MBUGUA......................................................................APPLICANTS
(Suing on their own behalf and as Administrators of the
Estate of the late GORDEN CHEGE NGACHA
VERSUS
JECINTA WANJIRU MUNIU...............................................................1ST RESPONDENT
(Sued on her own behalf and as the Administrator of the
Estate of the late JOSEPH MUNIU (Deceased)
SENIOR PRINCIPAL MAGISTRATE’S COURT WANG’URU.....2ND RESPONDENT
THE HON. ATTORNEY GENERAL..................................................3RD RESPONDENT
RULING
INTRODUCTION
The application for determination is the Notice of Motion dated 27th February 2019 brought under Order 8, Rule 3 C.P.R. The Applicant is seeking leave to re-amend the heading of the motion herein from Constitutional Application to a Miscellaneous Application. In her supporting affidavit sworn on 27th February 2019, the Applicant deposed that through inadvertence, the original application was filed as a Constitutional Application and they now wish to amend it to read Miscellaneous Application. She stated that no prejudice will be suffered by the Respondents if the proposed amendment is allowed.
In her response, the Respondent filed grounds of opposition opposing the proposed amendment stating that the same will fundamentally change the entire cause of action to her own detriment. The Respondent further stated that she has already responded to the original Originating motion and that any amendment will have no end in litigation as she will keep responding to the Applicant’s allegations.
I have looked at the Notice of Motion dated 27th February 2019, the supporting affidavit and the response by the Respondent. I have equally considered the submissions by their counsels and the applicable law. The Applicant had initially commenced this case by way of Constitutional Application (O.S). The Applicant now says that she wishes to amend her pleadings so that the case now becomes a Miscellaneous Application and not ELC Constitutional Application (O.S) as had earlier been commenced. Order 3 of the Civil Procedure Rulesprovides the options in which a party may institute a suit depending on the nature of the claim. Where a party wishes to change the choice of track from the one he had instituted in the original suit, that cannot be done by way of amendment. The applicant has to withdraw the suit and file the new suit in accordance with the choice of track he/she wishes to adopt. I agree with counsel for the Respondent that the proposed amendment will not only be prejudicial but will also change the cause of action to her detriment. I also agree with the Respondent that the amendments sought if allowed will prejudice her since she has already responded to the original choice of track which is sought to be changed. The Applicant’s remedy in my view is to withdraw this case and file a fresh case under the choice of track she now wishes to adopt.
From my analysis, the application dated 27th February 2019 lacks merit and the same is hereby dismissed with costs. It is so ordered.
READ and DELIVERED in open Court at Kerugoya this 19th day of July, 2019.
E.C. CHERONO
ELC JUDGE
19TH JULY, 2019
In the presence of:
1. M/S Ann Thungu
2. Mr. Kebuka Wachira
3. Mbogo – Court clerk