[2023] KEELC 510 (KLR)
The court found that the mere fact that the 1st defendant's application to amend the defence was filed shortly before the ruling on the plaintiff's application does not constitute sufficient reason to warrant review of the orders granting leave to amend. The court emphasized the importance of the right to be heard...
Source-derived case information.
- Citation
- [2023] KEELC 510 (KLR)
- Parties
- Plaintiff: Sammy Ndegwa Muriithi; Defendant: Richard Gachagwa Thairu; Defendant: County Government Of Nairobi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 303 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Application for Review of Orders Granting Leave to Amend Defence
- Outcome
- application dismissed
- Judges
- LN Mbugua
- Legal Topics
- Review of Court Orders, Amendment of Pleadings, Case Management, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Ndegwa Muriithi
Plaintiff
Richard Gachagwa Thairu
Defendant
County Government Of Nairobi
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Review of Orders Granting Leave to Amend Defence
Legal Issues
- 1 Whether the plaintiff has established sufficient grounds for review of the court's orders of December 8, 2021 granting the 1st defendant leave to amend its defence.
- 2 Whether the defence should be struck out and the 1st defendant ordered to pay costs for alleged perjury.
Ratio Decidendi
The court found that the mere fact that the 1st defendant's application to amend the defence was filed shortly before the ruling on the plaintiff's application does not constitute sufficient reason to warrant review of the orders granting leave to amend. The court emphasized the importance of the right to be heard and the need for parties to focus on trial preparation following pretrial directions. The application for review was therefore dismissed, with the court declining to strike out the defence or award costs for alleged perjury.
Court Disposition
application dismissed
Orders
- The application dated February 28, 2022 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
Muriithi v Thairu & another (Environment & Land Case 303 of 2017) [2023] KEELC 510 (KLR) (26 January 2023) (Ruling)
Neutral citation: [2023] KEELC 510 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 303 of 2017
LN Mbugua, J
January 26, 2023
Between
Sammy Ndegwa Muriithi
Plaintiff
and
Richard Gachagwa Thairu
1st Defendant
County Government Of Nairobi
2nd Defendant
Ruling
1. Before me is a notice of motion dated February 28, 2022 in which the plaintiff seeks orders of review of this court’s orders of December 8, 2021 whereby the 1st defendant was granted leave to amend its defence; that the defence filed herein be struck out and that the 1st defendant be ordered to remit costs of sh 50,000 for committal of perjury. The plaintiff avers that the 1st defendant’s application dated January 25, 2019 was only filed two weeks prior to the date of ruling of plaintiffs application dated September 1, 2021.
2. The 1st defendant has opposed the application vide his replying affidavit dated March 8, 2022 where he contends that he was unable to file his application dated January 25, 2019 because the file had a hearing date already.
3. I have considered the litigation history herein, in particular, this court takes into account its pronouncement on active case management principles captured at paragraph 19 in the ruling of November 3, 2021, and paragraph 13 in one of the rulings of December 8, 2021.
4. This is a matter whereby the pretrial directions have been given and the matter is scheduled for hearing on June 20, 2023. Even if the application dated January 25, 2019 was filed just few weeks to the delivery of a ruling of plaintiff’s application of September 1, 2021 that is not sufficient reason to warrant a review. I must add that the right to be heard is a valued right – see JMK v MWM & another 2015 eKLR and there being a hearing date in this suit, then the parties should focus on preparation of the trial. Further, the parties should internalize the impact of my ruling delivered on November 3, 2021. The application dated February 28, 2022 is hereby dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JANUARY, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Odhiambo holding brief for Kokul for plaintiffKimathi for 1st DefendantCourt assistant: Eddel