[2010] KEHC 313 (KLR)
The court found that the proposed amendment to the Notice of Motion was substantive and would materially change the parameters of the orders sought and the course of proceedings. Allowing such an amendment by oral application would be unfair and unjust to the respondents, who had prepared their defence based on the...
Source-derived case information.
- Citation
- [2010] KEHC 313 (KLR)
- Parties
- Applicant: Kepha Mwebi; Respondent: Hon. Mr. Justice Philip Waki; Respondent: Hon. Attorney General; Respondent: Commissioner of Police
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case 368 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Oral Application to Amend Notice of Motion
- Outcome
- Oral application for leave to amend Notice of Motion denied; costs awarded to respondents; application stood over generally by consent.
- Legal Topics
- Amendment of Pleadings, Notice of Motion, Oral Application, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kepha Mwebi
Applicant
Hon. Mr. Justice Philip Waki
Respondent
Hon. Attorney General
Respondent
Commissioner of Police
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Oral Application to Amend Notice of Motion
Legal Issues
- 1 Whether the applicant should be granted leave to amend the Notice of Motion by oral application.
- 2 Whether allowing the amendment would prejudice the respondents.
Ratio Decidendi
The court found that the proposed amendment to the Notice of Motion was substantive and would materially change the parameters of the orders sought and the course of proceedings. Allowing such an amendment by oral application would be unfair and unjust to the respondents, who had prepared their defence based on the original prayers. The court held that a formal application was necessary to ensure procedural fairness and to allow the respondents an opportunity to respond adequately to the proposed changes. Consequently, the oral application for leave to amend was denied, and costs of the oral application were awarded to the respondents.
Court Disposition
Oral application for leave to amend Notice of Motion denied; costs awarded to respondents; application stood over generally by consent.
Orders
- The oral application for leave to amend the Notice of Motion is denied.
- The respondents shall have costs of the oral application.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CIVIL CASE NO. 368 OF 2010
KEPHA MWEBI ………………………………………………….APPLICANT
VERSUS
HON. MR. JUSTICE PHILIP WAKI………....……..….…1ST RESPONDENT
HON. ATTORNEY GENERAL …………….………….….2ND RESPONDENT
COMMISSIONER OF POLICE ………….….…………...3RD RESPONDENT
R U L I N G
At the hearing of the Applicant’s application dated 28th September 2010, Mr. Ndegwa Counsel for the Applicant made an oral application for leave to amend the Notice of Motion in paragraph 2 by inserting the words “and in any event” after the word “abuse”. The application was opposed by Mr. Muteti for the Respondents.
I have considered the meaning and effect of the proposed amendment. I do find that if allowed it would change the parameters of the orders sought and the course of proceedings. It envisages the prosecution of suspects of the alleged crimes, even in the event the court declines to compel Hon. Justice Waki to disclose the names of the persons contained in the sealed envelope submitted to Hon. Kofi Annan in his capacity as Chairman of the Commission of Inquiry in the Post Election Violence following the December 2007 Elections.
It is a substantive and substantial amendment. The Respondents in the grounds of opposition had prepared their Defence based on the prayers in the Notice of Motion as it is. To allow the amendment of this magnitude through an oral application would not be fair and would be unjust in the circumstances.
I think that the Applicant ought to make a formal application to enable the Respondents respond to it effectively and to bring out the exact reasons for the intended amendment and its consequences to the pleadings and the entire proceedings if allowed.
The Respondent shall have costs of the oral application herein.
Dated and delivered at Mombasa this 6th day of December 2010.
M. K. IBRAHIM
J U D G E
O R D E RBY CONSENT
Application shall be stood over generally. Liberty to apply.
6. 12. 201
Coram: Ibrahim, J
Court clerk – Kazungu
Mr. Ndegwa for the Applicant
Mr. Ondari for Mr. Muteti for the Respondent
Ruling delivered in their presence.
IBRAHIM, J