Elias Micheni Mugo v Kenya Urban Roads Authority (KURA), Administrator Chuka Township, County Government of Tharaka Nithi, Hyper Constructions & Equipment Company Limited, Rachael Njeri Ndoho & Attorney General [2021] KEELC 3292 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT CHUKA

CHUKA ELC  CASE NO.  04 OF 2020

ELIAS MICHENI MUGO............................................................................................PLAINTIFF

VERSUS

KENYA URBAN ROADS AUTHORITY (KURA).........................................1ST DEFENDANT

THE ADMINISTRATOR CHUKA TOWNSHIP............................................2ND DEFENDANT

THE COUNTY GOVERNMENT OF THARAKA NITHI.............................3RD DEFENDANT

HYPER CONSTRUCTIONS & EQUIPMENT COMPANY  LIMITED.....4TH DEFENDANT

RACHAEL NJERI NDOHO.............................................................................5TH DEFENDANT

THE HONOURABLE ATTORNEY GENERAL.............................................6TH DEFENDANT

RULING

1. This application is dated 17th May, 2021 and seeks the following orders:

1. That the court do grant leave to the  plaintiff applicant to amend his amended plaint dated 29th  June 2020 and in particular introduce the pleadings relating to  a registered private surveyor who has taken measurement of  plot no.M26 B subdivision of plot no.26 parcel no.227  chuka township and special damages thereto.

2. The court be pleased to grant leave to the plaintiff applicant  to file a (sic) harmonized compliance documents.

3. Cost of this application be provided for.

2. The application has the following grounds:

(a) That by a ruling of this court dated 20thApril 2021, the court denied the applicant his prayer that the district surveyor do visit the locus in quo and establish  and beacon the parameters of the suit land plot no.M26 B  a subdivision of plot no.M26 parcel no,227 chuka township .

(b) As  a consequence of the ruling of this court dated 20thApril 2021 , the applicant case remain venerable for wants of evidence as to the actual parameters of the suit plot , plot no.M26 B a subdivision of plot no.M26 parcel no,227Chuka townshipviz a viz service road  crested moi girls road.

(c) That it will be very difficult  for the applicant to demonstrates to the court  whether or not plot no.M26 B subdivision of plot no.M26 PARCEL NO.227 chuka township is or is not on the road reserve unless  the measurement  are taken  and beacons fixed by a professional knowledgeable in that field.

(d) That to address the need in number (c)  above the applicant on 24thApril 2021 and 25thApril 2021 hired the services of a registered private surveyor trading in the style of KANUNU GEOSPATIAL SURVEYORS & CONSULTANTS LTD ,to map and beacon  the  extent of the suit plot to wit plot no.M26 B subdivision of plot no.M26 Parcel no.227 chuka township .

(e) That on account of the action that the plaintiff applicant has taken inbide to establish the actual parameters of the suit plot it has become necessary  for the plaintiff applicants to amend his amended plaint with a view to factoring in the work carried out by the registered private surveyor and the expenses incurred thereto which are special damages, which according to the law must be specifically pleaded and strictly proved.

(f) That if the prayers sought are not granted the applicants stand to suffer prejudice in that his pleadings will be incomplete ,particularly noting that a litigant cannot be awarded what he has not prayed for.

(g) That if the orders sought are granted  the applicant will put on the  table all issues ,parties and evidence for adjudication by the honorable court .

(h) That it is trite law that he who alleges must prove and for this reason the court should allow the orders prayed for to enable the applicant  establish the parameters of the suit plot namely plot no.M26 B subdivision of plot Nom26 parcel no.227Chuka Township  so that the applicant can present evidence to show whether or not plot no.M26 B a subdivision of plot no.m26 parcel no.227 chuka township is or not on the road reserve.

(i) That the main bond of contention in this suit is whether plot no.M 26 B Subdivision Of Plot No.M26 Parcel No.227Chuka Township is or is not on the road or road reserve and this can only be established by introducing the services of a registered surveyor and in this case KANUNU GEOSPATIAL SURVEYORS & CONSULTANTS LIMITED.

(j) That the nature of the amendment the plaintiff applicant is seeking for is as per the annexed draft amended amended plaint.

(k) That due to many amendment  and amended compliance documents and introduction of new documents particularly the surveyor report and payment receipt thereof  it is expedient and reasonable that the applicants be allowed to file an  harmonized compliance documents for ease of reference by the court and defence counsels.

(l) That no party stand to suffer any prejudice in the event that the orders sought are granted by the honorable court.

(m) That if the orders sought are granted  the hearing of the main suit will be expedited and the matter determined without delay.

(n) That the orders sought are apt in the circumstances  and substantive justice of the case requires that they be granted.

3. When the application was heard on 19th May, 2021, it was not opposed.

4. I find that the application is meritorious.

5. In the circumstances, I issue the following orders:

a) This application is allowed.

b) Costs shall be in the cause.

c) The parties to fully comply with order 11, CPR, within 14 days of today and to come to court for further directions on 14. 6.2021.

DELIVERED IN OPEN COURT AT CHUKA THIS 19TH DAY OF MAY, 2021in the presence of:

CA: Ndegwa

I.C. Mugo for the Plaintiff

Kiongo for 1st to 3rd Respondents

P. M. NJOROGE,

JUDGE.