Kalume & 16 others & another v Legal Representative of Cassam Suleiman Sumar & Haji Dad Kumberi (Executors of the Estate of Haji Suleiman Sumar Khamisa) & 2 others; Ruda (Applicant) [2024] KEELC 3311 (KLR)

Kalume & 16 others & another v Legal Representative of Cassam Suleiman Sumar & Haji Dad Kumberi (Executors of the Estate of Haji Suleiman Sumar Khamisa) & 2 others; Ruda (Applicant) (Environment & Land Case 194 of 2010) [2024] KEELC 3311 (KLR) (24 April 2024) (Ruling)

Neutral citation: [2024] KEELC 3311 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case 194 of 2010

SM Kibunja, J

April 24, 2024

Between

Kahindi Charo Kalume & 16 others

Plaintiff

and

Harji Govind Ruda

Applicant

and

Legal Representative of Cassam Suleiman Sumar & Haji Dad Kumberi (Executors of the Estate of Haji Suleiman Sumar Khamisa)

1st Defendant

Hakika Transport Services Ltd

2nd Defendant

Municipal Council of Mombasa

3rd Defendant

and

Harji Govind Ruda

Applicant

Ruling

1. The applicant moved the court through the notice of motion dated the 26th January 2023 seeking for inter alia, leave to amend the application dated the 15th September 2022 as per the annexed draft. The application is based on the five (5) grounds on its face and supported by the affidavit of Brian Borona advocate sworn on the 26th January 2023. It is the applicant’s case that he omitted the order and grounds when filing the application dated the 15th September 2022.

2. Though I have not seen any reply to the application on record, Mr. Tindi, learned counsel for the plaintiffs has filed unsigned written submissions dated the 31st January 2024 which the court has considered. At paragraph 4 of the said submission, counsel made reference to their grounds of opposition dated the 30th January 2023. The court will take it that counsel has covered the gist of their grounds of opposition in the said submissions.

3. The learned counsel for the Applicant filed written submissions in support of the application dated the 13th October 2023 which the court has also considered.

4. The main issues for determination by the court are as follows:a.Whether the applicant has made a reasonable case for leave to amend the notice of motion dated the 15th September 2022 to be granted.b.Who pays the costs?

5. The court has carefully considered the grounds on the application, affidavit evidence, submissions by the learned counsel, the record and come to the following conclusions:a.That though not captured or cited at the heading of the application, the general power to amend court documents is as set out in Order 8 Rule 5 of the Civil Procedure Rules that provides that:“5. (1)For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.(2)This rule shall not have effect in relation to a judgement or order.”The court has been moved by the applicant who desires to amend the notice of motion dated the 15th September 2022 in the manner proposed in the attached draft.b.The submissions by counsel for the plaintiffs, appear to address the application by the applicant to join the proceedings as a defendant. That is not the application being canvassed at this stage. What is for determination is whether or not the applicant should be allowed to amend his joinder application dated the 15th September 2022. c.During the mention of 1st February 2024, Ms. Njuguna for Kibaara for 3rd defendant informed the court that they were not opposing the application by the applicant. Having concluded that the Plaintiffs’ submissions, were addressing the joinder application, which is not for determination at this stage, the court finds the applicant’s application to amend their earlier application for joinder to be with merit.d.That though under section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya the costs follow the events unless otherwise ordered for good cause, in this instance the applicant though successful should meet his own costs in the application, as what he seeks to amend is his own mistakes.1. In view of the foregoing conclusions, the court finds and orders as follows:a.That leave to amend the notice of motion dated the 15th September 2022 as prayed in the notice of motion dated the 26th January 2023 is hereby granted.b.The amended notice of motion, in the terms in the attached draft, to be filed and served in fourteen (14) days and in default the leave to automatically lapse.c.The applicant to meet his own costs in the application dated the 26th January 2023. Orders accordingly.

DATED AND VIRTUALLY DELIVERED ON THIS 24TH DAY OF APRIL 2024. S. M. Kibunja, J.ELC MOMBASA.In the Presence of:Plaintiffs : Mr TindiDefendants : M/s Njuguna for Kibaara for 3rd Defendant.Applicant/Intended Defendant : Mr BoronaApplicants/Intended Plaintiffs : Mr. AbajaWILSON – Court Assistant.S. M. Kibunja, J.ELC MOMBASA.