[2018] KEELC 3841 (KLR)
The court held that the error in naming the 1st respondent as 'Minister of Lands, Housing, Physical Planning and Settlement' instead of 'Cabinet Secretary of Lands and Physical Planning' was an inadvertent technicality arising from the constitutional transition of ministerial titles. The court found that such a...
Source-derived case information.
- Citation
- [2018] KEELC 3841 (KLR)
- Parties
- Applicant: Republic; Respondent: Minister of Lands, Housing, Physical Planning & Settlement; Respondent: District Land Adjudication & Settlement Officer Meru South/Maara Sub County; Respondent: The Honourable Attorney General; Interested Party: Mutua Mugambi Arewa; Interested Party: Weru Tea Factory Company Limited; Applicant: Gilbert Muchiri Ngaine
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application 2 of 2018
- Procedural Posture
- Judicial Review Application / Ruling on Application to Amend Party Name
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Amendment of Pleadings, Misjoinder and Nonjoinder, Procedural Technicalities, Party Substitution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Minister of Lands, Housing, Physical Planning & Settlement
Respondent
District Land Adjudication & Settlement Officer Meru South/Maara Sub County
Respondent
The Honourable Attorney General
Respondent
Mutua Mugambi Arewa
Interested Party
Weru Tea Factory Company Limited
Interested Party
Gilbert Muchiri Ngaine
Applicant
Procedural Posture
Judicial Review Application / Ruling on Application to Amend Party Name
Legal Issues
- 1 Whether the ex-parte applicant should be granted leave to amend the 1st respondent's name to reflect the current constitutional office title.
- 2 Whether the misjoinder of the party is a curable technicality under the Civil Procedure Rules and the Constitution.
Ratio Decidendi
The court held that the error in naming the 1st respondent as 'Minister of Lands, Housing, Physical Planning and Settlement' instead of 'Cabinet Secretary of Lands and Physical Planning' was an inadvertent technicality arising from the constitutional transition of ministerial titles. The court found that such a misjoinder is curable under the Civil Procedure Rules and that Article 159(2)(d) of the Constitution mandates the administration of justice without undue regard to procedural technicalities. Since the application was unopposed and no party would suffer prejudice, the court allowed the amendment to ensure that the real parties and facts are properly before the court for adjudication.
Court Disposition
application allowed
Orders
- Leave is granted to the ex-parte applicant to amend the 1st respondent's name to read 'Cabinet Secretary of Lands and Physical Planning' instead of 'Minister of Lands, Housing, Physical Planning and Settlement'.
- The alteration shall be effected accordingly in the ex-parte applicant's pleadings.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC JUDICIAL REVIEW APPLICATION CASE NO. 02 OF 2018
REPUBLIC......................................................................................APPLICANT
VERSUS
MINISTER OF LANDS, HOUSING,
PHYSICAL PLANNING & SETTLEMENT....................1ST RESPONDENT
DISTRICT LAND ADJUDICATION & SETTLEME
OFFICER MERU SOUTH/MAARA SUB COUNTY......2ND RESPONDENT
THE HONOURABLE ATTORNEY GENERAL.............3RD RESPONDENT
MUTUA MUGAMBI AREWA......................................INTERESTED PARTY
WERU TEA FACTORY
COMPANY LIMITED...........................................2ND INTERESTED PARTY
GILBERT MUCHIRI NGAINE...............................EX-PARTE APPLICANT
RULING
1. This application is dated 29th March, 2018 and seeks orders:
1. That the court be pleased to grant leave to the ex-parte applicant to amend the 1st respondent’s name to read CABINET SECRETARY OF LANDS AND PHYSICAL PLANNING instead of MINISTER OF LANDS, HOUSING, PHYSICAL PLANNING AND SETTLEMENT.
2. That if prayer 1 is granted the alteration be effected accordingly in the ex-parte applicant’s pleadings.
3. Costs of this application be provided for.
2. The application is supported by the affidavit of GILBERT MUCHIRI NGAINE and has the following grounds:
a) That the findings, ruling and judgment of ABRAHAM KEMBOI delivered on 16th November, 2017 by ABRAHAM KEMBOI was delivered for and on behalf of the MINISTER OF LANDS, HOUSING, PHYSICAL PLANNING AND SETTLEMENT as he was then referred.
b) That after the 2010 constitution the ministers changed their titles to cabinet secretaries.
c) That inadvertently the ex-parte applicant named the cabinet secretary for LANDS AND PHYSICAL PLANNING as the MINISTER OF LANDS, HOUSING, PHYSICAL PLANNNG AND SETTLEMENT.
d) That the mistake was inadvertent and it amounted to a misjoinder of a party which can be cured by order 1 rule 9 and 10 of the civil procedure rules either on application or on the court’s own motion.
e) That this is a technicality that can be cured by article 159 (2) (d) of the constitution which provides that justice shall be administered without undue regard to procedural technicalities.
f) That no party stands to suffer any prejudice if the orders sought are granted.
g) That the orders sought are necessary if the real parties and facts are to be brought before the court for proper adjudication and administration of justice.
3. During interpartes hearing on 17. 4.2018, it transpired that the application was not opposed.
4. I note that the application seeks to substitute the Minister with the Cabinet Secretary in accordance with the dispensation spawned by the Constitution of Kenya, 2010.
5. In the circumstances, the application is allowed.
6. Costs shall be in the cause.
7. It is so ordered.
Delivered in open court at Chuka this 17th day of April, 2018
in the presence of:
CA: Ndegwa
I.C. Mugo for the Exparte Applicant
Muriithi for 2nd Interested party
P.M. NJOROGE
JUDGE