[2012] KEHC 3285 (KLR)
The court found that the application to amend the ex-parte Chamber Summons and Notice of Motion was incompetent because the Chamber Summons was already spent when leave was granted to file the substantive motion. The draft amended pleadings did not contain any actual amendments, and the applicants appeared to be...
Source-derived case information.
- Citation
- [2012] KEHC 3285 (KLR)
- Parties
- Applicant: Republic; Respondent: Chairman, Matungu Land Disputes Tribunal; Interested Party: James Amere; Interested Party: Judith Uluma; Interested Party: Ambrose Ambwere; Interested Party: Ongweno Lilnus; Interested Party: Joseph Malalam Sakwa; Applicant: Bernadeta Atsieno Wesonga; Applicant: Joseph Luchiri; Applicant: Maurice Okwalo; Applicant: Josephat Siang’ani; Applicant: Jared Chitayi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 17 of 2012
- Procedural Posture
- Judicial Review / Ruling on Application to Amend Pleadings
- Outcome
- application struck out as incompetent
- Legal Topics
- Amendment of Pleadings, Judicial Review Procedure, Order 53 Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Chairman, Matungu Land Disputes Tribunal
Respondent
James Amere
Interested Party
Judith Uluma
Interested Party
Ambrose Ambwere
Interested Party
Ongweno Lilnus
Interested Party
Joseph Malalam Sakwa
Interested Party
Bernadeta Atsieno Wesonga
Applicant
Joseph Luchiri
Applicant
Maurice Okwalo
Applicant
Josephat Siang’ani
Applicant
Jared Chitayi
Applicant
Procedural Posture
Judicial Review / Ruling on Application to Amend Pleadings
Legal Issues
- 1 Whether the applicants are entitled to amend the ex-parte Chamber Summons and Notice of Motion in judicial review proceedings.
- 2 Whether the procedure for amendment under Order 8 Civil Procedure Rules applies to judicial review proceedings governed by Order 53 Civil Procedure Rules.
- 3 Whether the application to amend is competent in the circumstances.
Ratio Decidendi
The court found that the application to amend the ex-parte Chamber Summons and Notice of Motion was incompetent because the Chamber Summons was already spent when leave was granted to file the substantive motion. The draft amended pleadings did not contain any actual amendments, and the applicants appeared to be seeking to introduce further affidavit evidence rather than proper amendments. The court emphasized that judicial review proceedings are governed by Order 53 Civil Procedure Rules, which have special procedures that must be strictly followed, and the general amendment provisions under Order 8 do not apply. As such, the application was struck out as incompetent, with costs awarded...
Court Disposition
application struck out as incompetent
Orders
- The application to amend the ex-parte Chamber Summons and Notice of Motion is struck out.
- Costs awarded to the Interested Parties.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
JUDICIAL REVIEW 17 OF 2012
REPUBLIC......................................................................................................APPLICANT
VERSUS
THE CHAIRMAN, MATUNGU LAND DISPUTES TRIBUNAL...............RESPONDENT
AND
1. JAMES AMERE
2. JUDITH ULUMA
3. AMBROSE AMBWERE...................................................INTERESTED PARTIES
4. ONGWENO LILNUS
5. JOSEPH MALALAM SAKWA
AND
1. BERNADETA ATSIENO WESONGA
2. JOSEPH LUCHIRI
3. MAURICE OKWALO........................................................................APPLICANTS
4. JOSEPHAT SIANG’ANI
5. JARED CHITAYI
RULING
The application by way of Notice of Motion dated 20. 5.12 seeks orders that leave be granted to the applicants to amend the ex-parte Chamber Summons dated 4. 2.12 and the Notice of Motion dated 7. 3.12. The application is supported by the affidavit of BERNADETA ATSIEMO WESONGA sworn on 20. 5.12.
The main grounds raised by the applicants are that the amendment is sought in order to correct typographical errors and to annex the copies of the proceedings from the Mumias Land Disputes Tribunal and the Mumias SPMCC Award No. 20 of 2009.
The application is opposed to as per the statement of grounds of opposition dated 21. 5.12.
I have considered the pleadings and the submissions of the counsels.
The annexed draft amended Chamber Summons and the draft amended Notice of Motion bear no proposed amendments at all. It seems what the applicants proposes to do is to bring in further affidavit evidence.
The Chamber Summons application dated 4. 2.12 was spent on 9. 2.12 when the applicant was granted leave to file the substantive motion. If the Notice of Motion is amended, it would amount to being on record without leave. The filling of an amended Chamber Summons and the amended substantive motion would amount to filing a new application.
Although amendments can be carried out in the manner provided for under Order 8 Civil Procedure Rules, the proceedings herein are special proceedings brought under Order 53 Civil Procedure Rules. The provisions of Order 53 Civil Procedure Rules must therefore be complied with.
The application is incompetent and the same is struck out with costs to the Interested Parties.
Delivered, dated and signed at Kakamega this 28th day of June, 2012
B. THURANIRA JADEN
J U D G E