[2017] KEELC 816 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KITALE

PETITION NO.1 OF 2017

LOWKWAWI LORIMOWI................................................1ST PETITIONER

ROBERT EKAI LOTARUK...............................................2ND PETITIONER

LOYEN ELUBIT..................................................................3RD PETITIONER

LOLIM NAKUWA...............................................................4TH PETITIONER

NABEI ELUBIT...................................................................5TH PETITIONER

ISWENENE ELEBIT..........................................................6TH PETITIONER

NGIKENOI ELUBI.............................................................7TH PETITIONER

TOBIA AGERIO................................................................8TH PETITIONER

ELUBIT LOMUMOWI.......................................................9TH PETITIONER

ELOMASE ELUBIT.........................................................10TH PETITIONER

LOSIL ELUBIT................................................................11TH PETITIONER

NAREGAE LOLIM..........................................................12TH PETITIONER

MARKO NABEI...............................................................13TH PETITIONER

KAMARET LOKIM..........................................................14TH PETITIONER

AWESIT LORUMOWI....................................................15TH PETITIONER

ANYAMAN LORIMOWI...................................................16TH PETITIONER

AKINYOKORI LORIMOWI..............................................17TH PETITIONER

LOGWAWI LORIMOWI..................................................18TH PETITIONER

EPUNGURE ALASU.......................................................19TH PETITIONER

KOLOI LOKWAWI........................................................20TH PETITIONER

MAGRET ISUKETE........................................................21ST PETITIONER

LOPERITO LOKWAWI.................................................22ND PETITIONER

LOTUKGI EVAN............................................................23RD PETITIONER

ASINYEN ESURON.......................................................24TH PETITIONER

NAMUKE LOCHO..........................................................25TH PETITIONER

KOLOI AKORI................................................................26TH PETITIONER

JOHN LOYARUK............................................................27TH PETITIONER

NAHASHON LOTARUK................................................28TH PETITIONER

ROBERT LOTELENGO..................................................29TH PETITIONER

PETER LOLIM.................................................................30TH PETITIONER

VERSUS

TULLOW OIL (K) LTD...................................................1ST RESPONDENT

COUNTY COMMISSIONER TURKANA COUNTY......2ND RESPONDENT

AND

THE HONORABLE ATTORNEY GENERAL.....1STINTERESTED PARTY

MINISTRY OF ENERGY & PETROLEUM........2ND INTERESTED PARTY

R U L I N G

1. The application dated 10/3/2017 came up for highlighting of submissions this morning. When he stood to address the court Mr. Bosek for the Petitioners applied to orally amend a number of documents so that where the Mining Act 2016 had been mentioned, it would be substituted with the Petroleum (Exploration and Production) Act Cap 308. The counsel for the Applicant urged the court to consider that as at the time of filing of the applicants’ submissions the error had been identified and in those submissions, the proper Act had been cited instead of the Mining Act 2016. He urged that there is no need to make a formal application and that it is just that the oral application be allowed.

2. On his part, Mr. Eredi who appears for the 2nd Respondent and holds brief for Mr. Wetangula for the 1st Respondent, and also appears for the Interested Parties, urged that it is an unfair application in that it goes to the root of the defence. He urged that the Applicants application was made after the Applicants saw the Respondents submissions in which the Respondents stated that the applicable Act was the Petroleum (Exploration and Production) Act. Mr. Eredi admits the Constitution allows for substantive justice rather than technicalities. He urges the court to decline the amendment application.

3. I note that both opposing sides have filed their submissions. The Applicant has taken inordinately long to bring the application for amendment. It may be as well that the Respondents and the Interested Parties have been misled to rely on the pleadings as they are in making their responses. However I agree that Article 159 2(d) emphasizes on substantive justice rather than procedural technicalities.

4. Is the issue at hand a mere procedural technicality? In my view, it is not. I find that reliance on one statute is not a mere issue of procedure, but of the strength, the substance of the case that one believes in, and when a party has had as long as the Applicant has to effect the appropriate amendment, he should not be allowed to ambush their adversary on the day of the hearing by relying on other Acts of Parliament. The most appealing thing to do in the circumstances is to decline the amendments proposed and hear the counsel on the substance, bearing in mind that any party’s case is normally based on their pleadings. In my view it is too late to make any amendments to the substantive pleadings at the moment and the application is hereby declined.

Dated, signed and delivered at Kitale on this 16th day ofOctober, 2017.

MWANGI NJOROGE

JUDGE

COURT

Ruling read in open court in the presence of Mr. Eredi for the 2nd Respondent and Interested Parties (also holding brief for Mr. Wetangula for the 1st Respondent) and Mr. Bosek for the Petitioners.

Court Assistant – Isabellah.

MWANGI NJOROGE

JUDGE

16/10/2017