[2014] KEELC 317 (KLR)
The court found that the application to amend the petition, though erroneously cited under the Civil Procedure Act and Rules, was substantively proper under the Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013. The rules expressly allow for amendments to...
Source-derived case information.
- Citation
- [2014] KEELC 317 (KLR)
- Parties
- Applicant: James Rotich; Applicant: John Komen; Applicant: James Kosir Chelanga; Applicant: Elias Maiyo Kipkosir; Applicant: Richard Kipkore Chebii; Respondent: Honourable David Kangogo; Respondent: Task Force for Restoration of Embobut Forest; Respondent: Ministry of Special Programmes; Respondent: Kenya Forest Services; Respondent: Attorney General; Respondent: County Government of Marakwet
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 14 of 2013
- Procedural Posture
- Constitutional Petition / Ruling on Application to Amend Petition
- Outcome
- application to amend petition allowed
- Legal Topics
- Amendment of Petition, Joinder of Parties, Compensation for Eviction, Forest Squatters Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Rotich
Applicant
John Komen
Applicant
James Kosir Chelanga
Applicant
Elias Maiyo Kipkosir
Applicant
Richard Kipkore Chebii
Applicant
Honourable David Kangogo
Respondent
Task Force for Restoration of Embobut Forest
Respondent
Ministry of Special Programmes
Respondent
Kenya Forest Services
Respondent
Attorney General
Respondent
County Government of Marakwet
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application to Amend Petition
Legal Issues
- 1 Whether the petitioners should be allowed to amend the constitutional petition to add more petitioners.
- 2 Whether the application to amend is properly brought under the applicable procedural rules.
Ratio Decidendi
The court found that the application to amend the petition, though erroneously cited under the Civil Procedure Act and Rules, was substantively proper under the Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013. The rules expressly allow for amendments to constitutional petitions, including the addition of parties. Since the application was unopposed and there was no substantive reason to decline it, the court allowed the amendment to ensure all affected parties could be heard and the matter could proceed on its merits. The court emphasized that procedural defects in citation would not override the substantive justice of allowing the...
Court Disposition
application to amend petition allowed
Orders
- The application to amend the petition is allowed.
- The amended petition shall be filed and served within 7 days.
Full Case Text
Judgment text and source record
34 paragraphs
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E&L PET NO 14 OF 2013
Formerly HCC Pet no. 13 of 2013
IN THE MATTER OF ARTICLES 2, 22, 23, 79, 156, 161(2), 173, 226 OF THE CONSTITUTION OF KENYA
BETWEEN
JAMES ROTICH...........................................................................1ST PETITIONER
JOHN KOMEN ….........................................................................2ND PETITIONER
JAMES KOSIR CHELANGA........................................................3RD PETITIONER
ELIAS MAIYO KIPKOSIR............................................................4TH PETITIONER
RICHARD KIPKORE CHEBII.......................................................5TH PETITIONER
(SUING ON BEHALF OF VICTIMS OF LANDSLIDE STAYING IN EMBOBUT FOREST)
AND
HONOURABLE DAVID KANGOGO................................................1ST RESPONDENT
TASK FORCE FOR RESTORATION OF EMBOBUT FOREST..2ND RESPONDENT
MINISTRY OF SPECIAL PROGRAMMES....................................3RD RESPONDENT
KENYA FOREST SERVICES.........................................................4TH RESPONDENT
ATTORNEY GENERAL …...............................................................5TH RESPONDENT
COUNTY GOVERNMENT OF MARAKWET..................................6TH RESPONDENT
(Application to amend a constitutional petition so as to add more parties; application unopposed; application allowed)
RULING
This suit was commenced by way of a constitutional petition said to be brought pursuant to the provisions of Articles 2, 22, 23, 79, 156, 161 (1), 173, and 226 of the Constitution of Kenya, 2010. It was filed by five persons namely, James Rotich, John Komen, James Kosir Chelanga, Elias Maiyo Kipkosir, and Richard Kipkore Chebii, who stated that they were suing on behalf of "Victims of Landslide Staying in Embobut Forest." Briefly, it is the case of the petitioners that a task force was formed by the Government to identify persons who are squatters in Embobut Forest for purposes of paying them some compensation to enable them move out of the forest. The petitioners allege that despite being entitled to compensation, their names were removed from the list of persons prepared by the task force. In this petition, they want an order that their names be maintained in the list of persons to be compensated.
Through an application dated 30 June 2014, the petitioners wish to amend the petition. The purpose of the amendment is to add several names of persons as petitioners. In total 749 persons want to be added as petitioners in this suit. The persons have described themselves as being the genuine qualified squatters of Embobut Forest.
The application as filed is said to have been brought under the provisions of Sections 3, and 3A of the Civil Procedure Act, and Order 1 Rule 10 (1) and (4) and Order 8 Rule 3 of the Civil Procedure Rules. On my part, I do not see how these provisions apply to a suit of this nature as the suit herein is not a suit that is subject to the civil procedure rules but is a constitutional petition subject to The Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013. I will therefore consider this application as filed under the proper rules and consider it on merit despite the defect. I however trust that counsel has taken note of the defect and will correct himself appropriately in future.
Rules 5 and 18 of the 2013 Constitutional Rules, do permit amendments to a petition, and one of the envisaged amendments is to add a party or parties to the petition. The application is not opposed by the respondents and on my part I see no reason why I should decline it.
The application is hereby allowed. I direct that the amended petition be filed and served within the next 7 days. I make no orders as to costs.
It is hereby ordered.
DATED AND DELIVERED AT ELDORET THIS 10TH DAY OF JULY 2014
JUSTICE MUNYAO SILA
ENVIRONMENT AND LAND COURT AT ELDORET
Delivered in the presence of:
Mr. H.O. Aseso holding brief for M/s Mose, Mose & Milimo & Co Advocates for applicants.
N/A for M/s Mburu Maina & Co Advocates for 1st Respondent.
Mr. P. Kuria of the State Law office present for 2nd, 3rd and 5th Respondents. and holding brief for Mr. R.M. Wafula for 6th Respondent.
Mr. J.N. Momanyi present for 4th Respondent.