1.In a ruling delivered on July 27, 2022, the Environment and Land Court at Mombasa (NA Matheka, J) allowed two applications for amendment of pleadings. One of the applications was by respondent dated March 16, 2022 seeking amendment of the plaint while the second application was by the applicants dated April 4, 2022 for amendment of their defence. The learned Judge concluded that the amendments proposed in both applications were necessary for the purpose of determining the real question or issue in the proceedings and that no prejudice would be occasioned to either party.
2.Aggrieved by the order permitting amendment of the plaint, the applicants filed this appeal contending, among other complaints, that the Judge erred in allowing the same; wrongly permitted introduction of a new and inconsistent cause of action that is statute barred; and failed to consider established law and principles on amendment of pleading.
3.The applicants/appellants are now before us with an application dated October 12, 2022 brought under Section 3 and 3A of the Appellate Jurisdiction Act, Rule 5(2)(b) of the Court of Appeal Rules, 2022 seeking orders that there be stay of all further proceedings in Mombasa ELC Cause No 143 of 2013 pending hearing and determination of the appeal herein.
4.In the affidavit sworn by Mohammed Hasnain Shabbir Noorani, the 3rd applicant in support of the application and in the applicants written submissions orally highlighted by learned counsel Mr Muriuki, it is urged that the appeal is arguable with high chances of success and that if the orders are not granted the ELC will in due course proceed with the hearing and determination of the suit based on the amended pleadings to the detriment of the applicants in which event this appeal will be rendered nugatory.
5.The respondent on the other hand, relying on a replying affidavit sworn by Salim Sultan Moloo, a director of the respondent and written submissions orally highlighted by learned counsel Mr Kinyua Kamundi after setting out in some detail the history of the matter, including reference to arbitration, urge that the application is frivolous; that nothing stops the applicant from raising the matter of limitation before the ELC; that the nugatory test is not met as any proceedings and judgment of the ELC are reversible by this Court should the appeal succeed. Counsel added a novel argument in his oral highlight, without supporting authority, that under the Constitution of Kenya, 2010
6.We have considered the application, the affidavits, and the submissions. The applicants’ appeal is an interlocutory appeal, from a ruling allowing amendment of pleadings. It challenges the exercise of judicial discretion by the learned Judge. Based on the grounds set out in the memorandum of appeal, and bearing in mind that an arguable appeal is not one that will necessarily succeed, we are not prepared to say that it is frivolous. It is arguable.
8.We decline to grant the orders sought. The application dated October 12, 2022 fails and is dismissed with costs to the respondent.