ALICE NJOKI WAITIKI & 4 others v MOSES NDUNGU MUNGA & another [2012] KEHC 2137 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Civil Case 12 of 2009

1. ALICE NJOKI WAITIKI

2. JOSEPH NGANGA WAITIKI

3. JAMES KAHIA KAGIMBI

4. FRACIA WANGARI KAHIA

5. GEOFREY NGANGA MBATIA..............................................................................................PLAINTIFFS

V E R S U S

1. MOSES NDUNGU MUNGA

2. OKOA DEVELOPMENT CO LTD....................................................................................DEFENDANTS

R U L I N G

1.     This is an application (by chamber summons dated 4th June 2010) by the Plaintiffs for leave to further amend their amended plaint dated 6th March 2009. The original plaint is dated 23rd January 2009. The application is made under Order VIA, rules 3 and 5of the old Civil Procedure Rules (the Rules).

2.    The grounds for the application appearing on the face thereof are -

(a)That the proposed amendments are necessary “to assist the court adjudicate on matters in issues”.

(b)That the Plaintiffs were not aware that the land in issue had been subdivided.

(c)That the new defendants “may get more than they are entitled to if amendments are not allowed”.

3.     A draft further amended plaint (in the application it is called “re-amended plaint”) is annexed to the supporting affidavit.

4.     It is apparent that the 3rd and 4th Defendants were joined in this suit by an order entered on 26th May 2010. This was pursuant to their own application by chamber summons dated 5th October 2009.

5.     The further amendments sought in the present application are thus a consequence of the addition of the 3rd and 4th Defendants. See Order 1, rule 10(4) of the old Civil Procedure Rules (now Order 1, rule 10(4) in the new Rules).

6.     The 3rd and 4th Defendants have opposed the application by replying affidavit (sworn by the 4th Defendant) filed on 15th July 2010). The grounds of objection they raise include-

(i)     That the Plaintiffs have not been diligent.

(ii)    That the averments contained in the proposed furtheramendments are not true.

(iii)That the Plaintiffs have no cause of action against the 3rd and 4th Defendants.

(iv)That the Plaintiffs’ claim against the 3rd and 4th Defendants is res judicata vide the judgment in Nairobi CMCC No 11556 of 2003.

7.     Regarding the first objection, leave to amend may be sought and granted at any stage of the proceedings. See Order 8, rule 3 of the new Rules. In any case, as already pointed out, the further amendments sought are as a consequence of the addition of the 3rd and 4th Defendants in these proceedings at their own instance. The objection upon the ground of want of diligence is thus not well-taken.

8.     As to the veracity or otherwise of the averments contained in the proposed further amendment, that is not an issue that can be tried in the present application. It must await trial of the action when it will be properly canvassed by way of tested evidence.

9.     The 3rd and 4th Defendants having been joined in proceedings at their own instance, they cannot now urge that the Plaintiff’s have no cause of action against them. That point is not well-taken at all.

10.   Regarding the plea of res judicata, the pleadings and judgment in Nairobi CMCC No 1155 of 2003 have not been annexed to the replying affidavit. The issue has thus not been properly taken and cannot be adjudicated at this stage with the material now before the court.

11.   I find absolutely no reason why I should deny the Plaintiffs leave to amend their plaint. The policy of the law in this regard is that leave to amend should be freely granted unless there will be grave prejudice to the opposite party. I find no such prejudice.

12.   In the event the chamber summons dated 4th June 2010 is allowed in prayer 1.  Leave to further amend the plaint is granted. Further amended plaint is to be filed within 14 days of delivery of this ruling. Costs of the application will be in the cause. Those will be the orders of the court.

13. The delay in preparation of this ruling is deeply regretted.  It was caused by my poor state of health in the recent years.  But I thank God that I am much better now.

DATED AT NAIROBI THIS 2ND DAY OF AUGUST 2012

H.P.G. WAWERU

JUDGE

COUNTERSIGNED AND DELIVERED AT MACHAKOS THIS 28THDAYOF SEPTEMBER 2012

ASIKE-MAKHANDIA

JUDGE