[2017] KEELC 2133 (KLR)
The court found that although the application to amend the memorandum of appeal was brought late and no plausible explanation for the delay was provided, the interests of justice warranted granting the amendment. The court emphasized that the amendment would enable effective adjudication of the issues in...
Source-derived case information.
- Citation
- [2017] KEELC 2133 (KLR)
- Parties
- Appellant: Japhet Mugambi Igweta; Respondent: Eunice Njira Kuura
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 13 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application to Amend Memorandum of Appeal
- Outcome
- application allowed with conditions
- Legal Topics
- Amendment of Pleadings, Memorandum of Appeal, Delay in Application, Interests of Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japhet Mugambi Igweta
Appellant
Eunice Njira Kuura
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Amend Memorandum of Appeal
Legal Issues
- 1 Whether the appellant should be granted leave to amend the memorandum of appeal at this stage of proceedings.
- 2 Whether the delay in seeking amendment is justified.
- 3 Whether the amendment is necessary for effective adjudication of the issues in controversy.
Ratio Decidendi
The court found that although the application to amend the memorandum of appeal was brought late and no plausible explanation for the delay was provided, the interests of justice warranted granting the amendment. The court emphasized that the amendment would enable effective adjudication of the issues in controversy. However, the court imposed conditions: the amended memorandum of appeal must be filed and served within seven days, failing which the amendment would be disallowed, and the applicant was ordered to bear the costs of the application.
Court Disposition
application allowed with conditions
Orders
- The amended memorandum of appeal to be filed and served within 7 days, failing which the amendment is disallowed.
- Applicant to meet costs of the application.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC APPEAL NO.13 OF 2017 (FORMERLY HCA 25B /2011)
JAPHET MUGAMBI IGWETA........APPELLANT
VERSUS
EUNICE NJIRA KUURA ................RESPONDENT
R U L I N G
1. The Notice of Motion dated 23rd July, 2017 seeks the following orders:-
1. That this Honourable Court be pleased to allow the appellant to amend his memorandum of appeal in terms of the draft annexed hereto.
2. That the costs be in this suit.
2. The application is based of the grounds that:-
a. That the Appellant needs to canvas other grounds of appeal which are not in the memorandum of appeal.
b. That in order for the Court to determine the issues in controversy effectively an amendment is called for.
c. That it is in the interest of Justice that the application is preferred.
3. The application is supported by the Supporting Affidavit of Japhet Mugambi Igweta sworn on 23rd May, 2017 and has the following grounds.
1. That the Applicant needs to amend memorandum of appeal to capture the grounds applicant need to canvas together with the earlier ones in the initial memorandum dated 2. 3.2011
2. That for the court to effectively adjudicate on the matter leave for amendment must be sought since the directions have been given already.
4. I find that this is a very old matter. It is only after it was earmarked for dismissal on 23. 5.17 that this application was brought forth. No plausible explanation has been advanced as to why applicant has waited this long to file the application.
Nevertheless, the Court proceeds to allow the application in the interest of justice but on the following terms.
1. The Amended memorandum of Appeal to be filed and served within 7days failing of which the amendment is disallowed.
2. Applicant to meet costs of the application.
DELIVERED, DATED AND SIGNED AT MERU THIS 26th DAY OF JULY, 2017 IN THE PRESENCE OF:
C:A Janet
Mwanzia for the Appellant
Haroun Gitonga for the Respondent absent
HON. L. N. MBUGUA
ELC JUDGE