Alice Chabala v Tom Onditi Mauabi & Philafe Engineering Ltd [2016] KEELC 874 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO .80 OF 2012

ALICE CHABALA ........................................................PLAINTIFF

VERSUS

TOM ONDITI MAUABI ....................................1ST DEFENDANT

PHILAFE ENGINEERING LTD..........................2ND DEFENDANT

RULING

The Defendant filed the notice of motion dated 17th August 2015 seeking to amend their defence to introduce a counterclaim and additional parties to the counterclaim. The application is based on the seven grounds marked (a) to (g) on the notice of motion and supported by the affidavit of Eng. Pertash A. Oloo, a director of Philafe Engineering Limited, who are the 2nd Defendant.

The application is opposed by the Plaintiff,Alice Chabala, through the replying affidavit filed on 21st August 2015.

The application came up for hearing on the 13th April 2016 when Mr Onsongo and Mr Onyango for the Defendants and Plaintiff respectively made their verbal rival submissions.

The issues for determination are as follows:

a) Whether or not the amendment sought by the Defendants will assist the court decide on the issues before it better.

b) Who pays the costs.

The court has considered the grounds on the notice of motion, the supporting and replying affidavits plus the rival submission by counsel and come to the following determination;

a) That the Plaintiff first commenced her claim against Tom Onditi Mayabi, the 1st Defendant, through the plaint dated 22nd October 2012 seeking for a permanent injunction in respect of Kisumu/Kasule/1584 and costs.

b) That the Plaintiff latter amended her plaint and enjoined Philafe Engineering Limited, the 2nd Defendant, through the amended plaint dated 18th January 2013. The earlier prayers were retained with an additional one seeking to have the title deed held by Defendants surrendered and cancelled.

c) The 1st Defendant filed his statement of defence dated 15th November 2012.

d) That the 2nd Defendant filed their statement of defence dated 5th February 2013. The 2nd Defendant then filed the Notice of Motion dated 7th April 2014 to enjoin the Attorney General as a third Party and the application was granted on 8th April 2014.

e) That the third party filed the memorandum of appearance dated 16th April 2014.

f) The Defendants then filed their list of documents, list of witnesses and proposed issues, all dated 28th June 2014 on the 30th June 2014. The suit was then fixed for hearing of the main suit on 25th September 2014 which was then moved to 25th June 2015 when again the hearing was moved to 16th December 2015. When the matter was called, counsel for the Defendant notified the court that an application dated 17th August 2015 had been filed and it was placed for hearing on13th April 2016.

g) That the court has after perusing the proposed counterclaim annexed to the supporting affidavit noted that the proposed Defendants are two of the parties herein being the Plaintiff, Attorney General and one other. That the main prayer is over ownership of the same land that the Plaintiff herein seeks in her claim.

h) That in view of the finding in (g) above, it is only fair that the amendment be allowed so that the issues relating to the ownership of land parcel Kisumu/Kasule/1584 between the parties be settled in one suit. That as the Defendants have taken too long to file the application for amendment they will pay the Plaintiff’s costs in this application.

6. That having found as above, the notice of motion dated 17th August 2015 is allowed with costs to the Plaintiff in any event. The amended defence and counterclaim be filed and served on all the parties within the next 14 days (fourteen) days.

It is so ordered.

SM. KIBUNJA

ENVIRONMENT & LAND – JUDGE

DATED AND DELIVERED THIS 25TH DAY OF MAY 2016

In presence of;

Plaintiff Absent

Defendant Absent

Counsel Mr Olel for Plaintiff/Respondent

Mr Omondi for Onsongo for Defendant/Applicant

SM. KIBUNJA

ENVIRONMENT & LAND – JUDGE

25/5/2016

S.M. Kibunja J

Mr Omondi for Onsongo for Defendant/Applicant

Mr Olel for the Plaintiff/Respondent

Court: Ruling delivered in open court in presence of Mr Omondi for Onsongo for Defendant/Applicant and Mr Olel for Plaintiff/Respondent.

SM. KIBUNJA

ENVIRONMENT & LAND – JUDGE

25/5/2016