https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12355

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **JUDICIAL REVIEW NO. E002 OF 2024** **IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW ORDERS IN THE NATURE OF MANDAMUS** **IN THE MATTER OF THE JUDICATURE ACT, CAP 8 LAWS OF KENYA AND CAP 53 OF THE CIVIL PROCEDURE RULES** **BETWEEN** **REPUBLIC………………………………………………APPLICANT** **AND** **CHIEF OFFICER HEALTH SERVICES** **MAKUENI COUNTY……………….………….1ST RESPONDENT** **COUNTY EXECUTIVE COMMITTEE MEMBER** **DEPARTMENT OF HEALTH SERVICES MAKUENI** **COUNTY………………………………………..…2ND RESPONDENT** **COUNTY EXECUTIVE COMMITTEE MEMBER** **DEPARTMENT OF FINANCE, PLANNING BUDGET & REVENUE** **MAKUENI COUNTY……………………………..3RD RESPONDENT** **AND** **MUKUMBU NDUTO MAKAU** **NGELI MUKUMBU NDUTO……………..…*EX-PARTE* APPLICANTS** **RULING** 1. On 02/08/2020, in a road accident occurred involving involved m/v registration no.17CG 065A belonging to the County Government of Makueni and m/cycle Registration no. KMET 637S on which one Arnold Mukumbu Musyoki who was a pillion passenger, suffered fatal injuries, 2. The legal representatives of his estate and the *ex-parte* Applicants herein, being his legal representatives, filed Makueni CMCC E075 of 2021 seeking compensation. . The suit was decided in their favour and culminated in a decretal award of kshs 11,020, 696.65/= against the County Government of Makueni. 3. The *ex-parte* Applicants acknowledged receipt of kshs 3,000,000/= from the County Government’s Insurer and averred that the balance of kshs 8,020,696.65/= remains unpaid hence the Application herein. **The Application** 1. The amended Notice of Motion, dated 22/07/2025, seeks the following reliefs; 2. That, the Respondents be compelled to settle the decretal sum herein, a balance of kshs 8,020,696.65/=in Makueni CMCC No. E075 of 2021; Mukumbu Nduto Makau and Ngeli Mukumbu Nduto (Suing as the Administrators and/or Personal Representatives of the estate of Arnold Mukumbu Musyoki (deceased) -vs- Eric Mutua & County Government of Makueni. 3. Costs of the Application be in the cause. 4. The Respondents reacted by filing a Preliminary Objection (P.O), dated 11/08/2025, on the following grounds: 5. That no leave of the Court was granted to institute Judicial Review proceedings against the newly added Respondents as listed in the Amended Notice of Motion dated 22nd July 2025 contrary to the mandatory provisions of Order 53 Rule 1(1) of the Civil Procedure Rules, 2010, thereby rendering the proceedings incompetent, bad in law, and fatally defective. 6. The P.O was canvassed through written submissions. **Submissions by the Respondents** 1. It was submitted that the *ex-parte* Applicant’s failure to seek leave to include additional Respondents renders the entire proceedings fatally defective against the newly added Respondents. That, the amended Application also expanded the grounds/reliefs beyond those for which leave had been granted. 2. Reference was made to Order 53 of the Civil Procedure Rules for the submission that, *leave is a condition precedent which defines the parties, reliefs and grounds*. That, the purpose of leave is to act as a filter to prevent abuse of judicial review remedies. Reliance was placed on **Republic -vs- County Council of Kwale & Anor *ex-parte* Kondo & 57 Others (1998) (High Court at Mombasa)** where, in dismissing the Application, the court held that leave is necessary to eliminate frivolous, vexatious or tardy Applications at the threshold. It was contended that the decision in this case underscores that leave is not a mere technicality but goes to the root of jurisdiction. 3. Further reliance was placed on **Republic -vs-Commissioner of Lands and Anor: Masai Villas Ltd (*ex-parte* Jimmy Mutinda) [2013] eKLR** for the submission that any enlargement of reliefs or grounds must be sanctioned by the court at the substantive stage. 4. It was submitted that joinder of parties in judicial review proceedings is controlled by Order 1 Rule 10(2) of the Civil Procedure Rules. Reliance was placed on **Kagiri -vs- Business Registration Service; Mwangi (Interested Party) (Judicial Review E083 of 2023) [2024] KEHC 1213** for the submission that proper joinder requires a formal Application, considerations by court and directions before amendment. That, the court declined to recognize improperly added parties. 5. Reliance was placed on **Mukisa Biscuit Manufacturing Ltd -vs- West End Distributors (1969) E.A 696** for the submission that the objection herein is strictly legal as its on whether the Applicants could amend proceedings to add Respondents without leave. 6. It was submitted that any reliance on Article 159 of the Constitution is not tenable because the said Article is not a panacea for ignoring mandatory procedural requirements as per the Supreme Court holding in **Nicholas Kiptoo arap Korir Salat -vs-IEBC & 7 Others [2014] KESC 12.** 7. It was submitted that jurisdictional defects must be addressed upfront as per the holding in **Owners of the Motor Vessel ‘Lilian S’ -vs- Caltex Oil (Kenya) Ltd (1989) KECA 48**. 8. In conclusion, this court was urged to uphold the P.O and strike out the amended Application in its entirety. **Submissions by the *ex-parte* Applicants** 1. It was submitted that in the original Application, the *ex-parte* Applicants described the Respondents as the county secretary Makueni County Government and the chief officer finance /treasurer Makueni county government, who at the time of seeking leave, they believed were the accounting officers of the Makueni County Government and therefore the people responsible for paying the balance of decretal sum owed. 2. That, on 07/07/2025, counsel for the *ex-parte* Applicants sought leave to properly describe the parties and also sought leave to file a further affidavit. That, counsel for the Respondents did not oppose the application and therefore, the *ex-parte* Applicants were granted leave to amend the substantive notice of motion, so as to correctly describe the parties. That, the *ex-parte* Applicants were also granted leave to file a further affidavit. 3. That, in the further affidavit, the *ex-parte* Applicants averred to events which had happened since the filing of the present Judicial Review proceedings, including admission of the debt and promises to factor in the balance of decretal sum in a supplementary budget and later in the main budget which had not materialized. 4. It was submitted that the amendment of the substantive Notice of Motion did not change the relief or the nature of the relief sought. That, the amendment only affected the heading as it involved a proper description of the Respondents and a proper description of what role the Respondents play in the Makueni County Government. 5. That, the relief sought remained an order of mandamus compelling the Respondents to settle the balance of the decretal sum. That, the grounds relied on by the *ex-parte* Applicants remained that the Respondents have, to date, refused to pay the balance and that they should therefore be compelled to make the payment. It was therefore contended that the substantive Notice of Motion was properly amended with leave of court and without objection from the Respondents. 6. Reliance was placed on **Kiniu -vs- Deputy County Commissioner Mutomo Sub-County & 2 Others; Munyalo (Interested Party) (Judicial Review Application E011 of 2022) [2023] KEELC 16399 (KLR) (14 March 2023) (Ruling)** where the court stated; *“Is the court to find the main notice of motion as incompetent and incapable of amendment for having incorrectly described the parties to the suit? In my view the court has discretion to look at the application for amendment in light of the provisions of Article 159(2) (d) of the Constitution of Kenya 2010. I have also considered the ruling in the case of* ***Republic v Commissioner of Value Added Tax Ex parte Iron Art Limited [2012] KLR*** *relied on by the applicant where the court held that:* *“On the Prayer for amendment of the Notice of Motion in order to properly describe the Respondent, I find that though it has not been disputed that the office of Commissioner of VAT does not exist, the Respondent has not denied the Applicant's claim that the correct Respondent in this case is the Commissioner for Domestic Taxes who was the same person named as the Respondent in the application for leave but wrongly described as the Commissioner for VAT. This demonstrates the Applicant's claim that the amendment sought seeks to properly describe the Respondent and does not go to the substance or root of the application. The application was made without inordinate delay and there is no evidence to suggest that any prejudice will be occasioned to the Respondent if the prayer for amendment of the Notice of Motion is allowed. In the event, Order 53 Rule 4(2) of the Civil Procedure Rules allows amendment of the statement of facts supporting a notice of motion provided that a notice of intention to amend is given to all parties and the proposed amendment is availed to the parties affected. If the rules under Order 53 Civil Procedure Rules allows for amendment of a statutory statement which in my view is a mirror of the substantive motion, I find that no injustice or prejudice would be caused to parties who have had notice of intention to amend the notice of motion and of the proposed amendment if the court exercised its discretion under its inherent powers to allow an amendment to the notice of motion. In this case, I find that the filing of the instant application and the attachment of the draft amended notice of motion as an annexture to the application constitutes notice of intention to amend and nature of the proposed amendment…. For all the foregoing reasons, I am inclined to allow the prayer for amendment for the correction of the Name of the Respondent but not of the Name of the deponent in the supporting affidavit”* *18.I do concur with the applicant that the application herein seeks to properly describe the parties to this suit and does not go to the substance or root of the main application….* *19.While ordinary rules of civil procedure may not apply to judicial review proceedings, the courts still must be guided by Article 159(2) of the Constitution and not give undue regard to procedural technicalities in the dispensation of justice.* *20.The Court of Appeal grappled with an almost similar issue in the case of* ***Republic v Charles Lutta Kasamani & another ex parte Minister for Finance & Commissioner of Insurance as Licencing and Regulating Officers [2006] eKLR*** *where the Republic was wrongly cited as the Appellant and observed that:* *“… Indeed the predecessor of this Court was grappling with similar problems in the East African region half a century ago on matters of form in intituling proceedings under the Law Reform Ordinance, as it then was by name, and has since remained in substance… Suffice it to say that a defect in form in the title or heading of an appeal, or a misjoinder or non-joinder of parties are irregularities that do not go to the substance of the appeal and are curable by amendment…Is the form of title to the appeal as adopted by the Attorney General in this matter defective or irregular? We think not, as we find that it substantially complies with the guidelines set out by this Court……In view of those decisions we find no impropriety in citing the “Republic” as “the appellant” in this matter when in truth it is the Minister for Finance and the Commissioner of Insurance, who are the aggrieved parties in the appeal. That objection also fails.”* *21.Even though this case is not an appeal, I do find that the defect in form in the title or heading of the notice of motion is an irregularity that does not go to the substance of the suit and is curable by amendment. The simple amendment envisaged would not cause the other parties any prejudice and it is in the interest of justice that the case be fully determined on merit in order that all questions in issue may be determined…”* 1. It was submitted that if this court does not find that the amendment of the substantive Notice of Motion was without with leave, then, it should consider that striking it out would have the effect of defeating the Judicial Review proceedings and should therefore be a matter of last resort. 2. It was contended that the submissions by the Respondent *to wit*; that a party cannot be enjoined without a formal Application, is not the correct position. Reliance was placed on **JMK -vs- MWM & Another [2015] KECA 524 (KLR)** where the Court of Appeal stated; *“We would however agree with the respondent that Order 1 Rule (10)(2) contemplates an application for amendment or joinder of parties where proceedings are still pending before the Court. Sarkar’s Code, (supra) quoting as authority, decisions of Indian Courts on the provision, expresses the view that an application for joinder of parties can be filed only in pending proceedings. In the same vein, the Court of Appeal of Tanzania, while considering the equivalent of Order 1 Rule 10(2) of our Civil Procedure Rules, in TANG GAS DISTRIBUTORS LTD V. SAID & OTHERS [2014] EA 448, stated that the power of the court to add a party to proceedings can be exercised at any stage of the proceedings; that a party can be joined even without applying; that the joinder may be done either before, or during the trial; that it can be done even after judgment where damages are yet to be assessed; that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable; and that a party can even be added at the appellate stage…”* 1. The only issue for determination is whether the P.O is merited. **Analysis and Determination** 1. A Preliminary Objection P.O must be a pure point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose off the suit in its entirety. This was the holding in **Mukisa Biscuit Manufacturing Ltd -vs- West End Distributors (1969) E.A 696** 2. The objection herein is that the substantive Notice of Motion dated 22/07/2025 was brought without leave of court and is therefore fatally defective. The Applicant’s position is that leave was sought on 07/07/2025 and there was no objection from the Respondents. That, the amendment was only meant to describe the Respondents properly and does not go to the root of the Application. 3. According to the court record of 07/07/2025, the *ex-parte* Applicant’s counsel informed court that they had reached a consent but the matter had not been finalized hence they were seeking to proceed. Consequently, she sought leave to amend the Notice of Motion and to file a Further Affidavit. The Respondents’ counsel confirmed the position and stated that he had no objection to the Application and sought 21 days to file a response. 4. Consequently, leave was granted as prayed and *ex-parte* Applicants given 14 days to file and serve the amended Application and Further Affidavit. The Respondents were granted 21 days to file and serve their response upon receiving the amended Application. 5. It is therefore evident that the amended Application and Further Affidavit were filed with leave of court and without objection from the Respondents. 6. In the original Application, the Respondents were; the County Secretary and the Chief Officer Finance/Treasurer in Makueni County Government whereas in the amended Application, the Respondents are; The Chief Officer Health Services Makueni county, the County Executive Committee Member Department of Health Services Makueni and the County Executive Committee Member Department of Finance Planning Budget and Revenue Makueni County. 7. It is therefore evident that all the Respondents in the original and amended Applications are officers within the Makueni County Government and that the purpose of the amendment was to properly describe the officers that are responsible for making payments on behalf of the County Government. 8. **Order 53 Rule 4(2)** of the **Civil Procedure Rules** provides as follows p *“The court may on the hearing of the motion allow the said statement to be amended and may allow further affidavits to be used if the deal with new matters arising out of the affidavits of any other party to the application, and where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he shall give notice of his intention and of any proposed amendment of his statement.”* 1. It is evident that the law allows amendment of substantive matters in a Judicial Review Application. In this case it was an application to amend the Notice of Motion to describe the Respondents properly. Evidently the amendment does not go to the root of the Application and does not prejudice the Respondents in any way. In any case, leave to amend was sought and granted on 07/07/2025 and the Respondents had proper notice of the intention to amend as their Counsel was present in court and unequivocally stated that he had no objection. The Respondents were also granted leave to file response to the amended application. 2. It is evident that there was leave to amend. It is evident that the amendment did not go to the root of the application. The Preliminary objection therefor lacks merit and is dismissed with costs to the applicants. **Dated signed and delivered via CTS this 20TH JULY 2026** **MUMBUA T MATHEKA** **JUDGE** **Applicant’s Advocate** Mutuku Faith & Associates Mutukuwambua33@yahoo.com **Respondents’ Advocate** Office of the County Attorney Government of Makueni County