Francis Mulei Kikemu, Esther Wanza Wambua, Florence Sovia Ngumbau & Francis Ngumbau Ndaka v Elizabeth Mutete Kiio & Livingstone Kyengo Ngemu [2021] KEELC 2910 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MAKUENI

ELC CASE NO. 100 OF 2018

FRANCIS MULEI KIKEMU ..............................1ST PLAINTIFF/APPLICANT

ESTHER WANZA WAMBUA .......................... 2ND PLAINTIFF/APPLICANT

FLORENCE SOVIA NGUMBAU ....................3RD PLAINTIFF/APPLICANT

FRANCIS NGUMBAU NDAKA ..................... 4TH PLAINTIFF/APPLICANT

-VERSUS-

ELIZABETH MUTETE KIIO........................1ST DEFENDANT/RESPONDENT

LIVINGSTONE KYENGO NGEMU .........2ND DEFENDANT/RESPONDENT

RULING

1.  The application for determination is the dated 21st July, 2020 and filed by the Plaintiffs/Applicants on 7th October, 2020. It is brought under Order 8 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

2.  The Applicants seek the following Orders:

i)  That the Plaintiff be allowed to amend the Plaint dated 11th September, 2018 as per the annexed draft copy.

ii) That the costs of the application be provided for.

3. The application is supported by the affidavit of Francis Mulei Kikemu sworn on 21st July, 2020 and the supplementary affidavit sworn on 6th November, 2020 on his behalf and that of his co-plaintiffs. The basis of the application is that there have been new developments in the dispute since the suit was filed and hence the need to capture them. That the 1st Respondent has since the time of filing this suit moved into the suit property and began construction, in disobedience of the existing status quo orders issued on 30th October, 2018.

4.  The application is opposed by Elizabeth Mutete Kiio vide the replying affidavit sworn on 28th October, 2020. The affiant avers that the application is full of falsehoods meant to mislead this Court. That at the time the status quo orders were being issued, she was already in possession of the suit property and she had also moved into the house she erected thereon. That the orders which the Plaintiffs are seeking cannot be issued by the Court at this stage.

5. The Applicants and the 1st Respondent duly filed their submissions as per the directions issued on 10th November, 2020. The Applicants submitted that the law governing amendment of pleadings states that such applications ought to be freely allowed. That such applications should be made timeously and that a new cause of action should not be introduced. It is further submitted that the amendments are consistent with the cause of action since the question on whether the illegal structures erected by the 1st Defendant ought to be brought down, after issuance of the status quo orders, will be answered after the issue of ownership has been addressed.  That the amendments could not be contemplated at the time of filing the suit because the 1st Defendant had not committed the disputed acts.

6. On behalf of the 1st Respondent it was submitted that amendment of pleadings is within the judicial discretion given to this Court under Order 8 Rule 3 of the Civil Procedure Rules. That the proposed amendments are an abuse of court process since the amendment sought is part of the prayers in the original plaint. That the Applicants are guilty of laches because they have sought to amend the plaint two years after filing the suit. That the proposed amendments are immaterial to the case since the real issues in the suit can be determined without the amendments. The 1st Respondent relied on the case of Beatrice Gikunda –Vs- CFC Life Assurance Limited [2020] eKLR in support of his submissions.

7.  The only apparent issue for determination is whether the Applicants demonstrated sufficient cause for the exercise of discretion under Section 100 of the Civil Procedure Act and Order 8 Rule 3 of the Civil Procedure Rules. The principles that govern the exercise of such discretion were elucidated by the Court of Appeal in Central Kenya Ltd –Vs- Trust Bank Ltd [2000] 2 EA 365 (CAK) where it was held as follows: -

“The amendment of pleadings and joinder of parties was aimed at allowing a litigant to plead the whole of the claim he was entitled to make in respect of his cause of action. A party would be allowed to make such amendments of pleadings as were necessary for determining the real issue in controversy or avoiding a multiplicity of suits provided (i) there had been no undue delay, (ii) no new or inconsistent cause of action was introduced, (iii) no vested interest or accrued legal right was affected, and (iv) the amendment could be allowed without injustice to the other side. Accordingly, all amendments should be freely allowed at any stage of the proceedings, provided that the amendment or joinder did not result in prejudice or injustice to the other party that could not be properly compensated for in costs; Beoco Ltd v Alfa Laval Co Ltd [1994] 4 All ER 464 adopted.”

8.  I have perused the draft amended plaint annexed to the supplementary affidavit of Francis Mulei Kikemu. The elements of the Plaintiffs’ claim are based on grounds of fraud and misrepresentation and breach of trust. It is the Plaintiffs’/Applicants’ contention that in furtherance of the fraud perpetrated by the Defendants/Respondents, they have consequent to the filing of the suit constructed a house in the suit property in order to defeat the claim. That beyond constructing the house, they defied a court order issued herein. As a result, they seek to amend the plaint so as to include a prayer that the structures built in the suit property be demolished.

9.  My comprehension of the above proposed amendment is that it flows directly from one cause of action which is fraud. I do not consider that the amendments sought are in any manner immaterial to the Plaintiffs’ suit. In fact, the amendment elaborates the cause of action even further and thus gives the Plaintiffs wide berth to prosecute the whole matters which are in controversy.

10.  To buttress the above position, the Court in Muleya –Vs- Common Market for Eastern and Southern Africa and another (1) [2003] 1 EA 173 (COMESA) aptly held as follows: -

“In light of all the above, the conclusion is inescapable that the rule to be followed by the court is that an amendment to a party’s pleadings will be allowed if the amendment seeks only to amplify, elaborate, particularize or elucidate on a matter that is already contained in the pleading that is sought to be amended. Conversely, an amendment that seeks to introduce a brand new matter altogether (such as a new cause of action, or a new relief), is to be denied.”

11.  It is my finding therefore that the amendments sought to be made are in order and that no prejudice will be suffered by the Defendants. The orders which commend themselves for purposes of expediency are as follows:

i)  THAT the Plaintiffs are hereby granted twenty-one (21) days leave to amend the Plaint as per the copy annexed to the supplementary affidavit sworn on 6th November, 2020;

ii) THAT the Defendants shall have corresponding leave to amend their statements of defence;

iii)   THAT the costs of the application to abide the outcome of the main suit.

12.   Orders accordingly.

SIGNED, DATED AND DELIVERED AT MAKUENI VIA EMAIL THIS 14TH DAY OF JUNE, 2021.

……………………………………..

HON. MBOGO C.G.

JUDGE

Court Assistant: Mr. Kwemboi