Grace Wairimu Njihia v Kimani Mwangi & Mwangi Muchiri [2021] KEELC 1747 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT  AND LAND CORT AT THIKA

ELC APPEAL  CASE NO. 48 OF  2019

GRACE WAIRIMU NJIHIA...................................................................APPELLANT

VERSUS

KIMANI MWANGI .....................................................................1ST RESPONDENT

MWANGI MUCHIRI................................................................2ND  RESPONDENT

(Being an Appeal from the  Ruling and order  of Honourable M.W Wanjala,  Senior Resident Magistrate  delivered and dated 18th July 2019,  in MCL & E Case Number 333 of 2014 at Thika)

JUDGMENT

The   Appellant is the Plaintiff in  Thika  MCL & E 333 of 2014 while the Respondents are the Defendants. By a Notice of Motion Application dated 15th April 2019, the Defendants (Respondents) sought for orders that;

1.  That leave do and is hereby granted to the Defendants to amend the Defence dated 7th July 2014, in the manner demonstrated in the Draft Amended Defence and Counter Claim annexed to the Affidavit of Mwangi  Muchiri annexed  herewith as annexture  MM1

2.  That the Court be pleased to grant any other appropriate relief that it deem fit in the interest of fair Administration of justice and the Rule of law,

3.  That Costs of this Application be provided for.

The Application is premised on the grounds that a purposive scrutiny of the Defence filed by the Firm of Advocates previously on record for the Defendants (Respondents), does not offer a correct, substantive and elaborate   purport of events and facts in the present dispute. That the said omission/ mistake by Counsel necessitates urgent amendment of the Defence  to  properly bring the Defendants ( Respondents) case before Court. That the Rules of Court constrain that leave must be obtained before any amendment can be made. Further, that allowing the Amendment and filing of the Counter Claim shall enable the Defendants(Respondents) to plead its entire case and enable the Court to effectually and completely adjudicate upon and settle all questions involved in the suit.

In his Supporting Affidavit, Mwangi Muchiriaverred that   he has been explained to by his Advocates on record which advice he believes to be true that the Defence as presently drafted does not bring to the Court the real matter in controversy between the parties herein specifically, it does not disclose the interest of the Defendants  (Respondents)  on the suit property  Ruiru /Kiu Block 2/2014,  as will be brought in the Counter Claim. That the draft Amended Defence and Counter claim demonstrates the manner in which the amendment is sought. Further, that he has been advised by his Advocates that the amendment as sought can be done at any time before Judgment, in accordance with the law.

The Application was opposed and Grace Wairimu  Njihia, the   Plaintiff ( Appellant)  swore a Replying Affidavit on20th May 2019,and averred that the Application lacks merit  as it is brought in bad faith  as it is out to scuttle  the hearing of her case, to its logical conclusion  as it was filed on 30th April 2019, but the same was  served on her Advocates on  20th May 2019,with no good reasons advanced. That the Plaintiff (Appellant) is a total stranger to the alleged suit property Ruiru /Kiu block 2/2014, as advanced in their Application and that she had been advised by her Advocate   on record, that the Court cannot grant the orders sought in respect to a suit property not pleaded in the pleadings.

Further that the Defendants (Respondents) filed their Defence on 8th July 2014,  through their Advocates on  record and  rushing to Court 5 year later, allegedly citing mistake and omission  reeks of total contempt.  Further that the alleged Amendment introduces a Counter Claim in this stage of proceedings, after she had testified and closed her case and is ill conceived as it seeks to introduce a new cause of action, which is time barred and thus asking the Court to substitute a cause for another and change the subject matter. That the 2nd Defendant (Applicant) has not come to this Court with clean hands, as the Application was served on her Advocates on the date that the suit was coming up for Defence hearing, notwithstanding it was filed on 30th April 2019. That she has been advised by her Advocates that the Defendants (Respondents) have an habit of filing pleadings outside the timelines to scuttle the Court proceedings and embarrass the Court in delaying the suit.

It was further averred that leave ought to be obtained, but the leave is not absolute, that it will be given, where it occasions injustice to another party to the pleadings and inadvertent error which is not in this case and it will be prejudicial to the Plaintiff(Appellant), coming after the close of her case.  That amendments are generally allowed, if they don’t create a new cause of action nor introduce new materials to  the pleading  after the close  of the Plaintiff’s ( Appellant)  case and it is not an abuse  of the Court  process  as in the instant Application. That it is in the interest of Justice that the Orders sought by the  2nd Defendant ( Respondent)  are not to be allowed,  as he pleaded a wrong suit property . That the Orders are futile and hence the Application ought to be dismissed.

The Application was canvassed by way of Written Submissions and the Court delivered its Ruling on 18th July 2019,allowing the Defendants (Respondents) application and ordered that;

a)  That the annexed draft amended Defence be deemed as duly filed upon payment of the requisite filing fees.

b)   The Plaintiff is at liberty to file a reply to that defence  and Defence to counter Claim  and have it served  within 14 days  of this Ruling.

c)   This case shall proceed to hearing  on the 20th August 2019  starting with the Plaintiff  of  she wishes to adduce  any further  or their  evidence,

d)  The costs  of the Application  are awarded to the Plaintiff .

The  Appellant   being aggrieved by the  above decision filed a Memorandum of  Appeal dated 29th July 2019, and sought for orders that ;

1. That this Appeal  be allowed with costs  to the Appellant.

2. That the Decision , Ruling and Order of Honourable M.W  Wanjala, Mr. Senior  Resident Magistrate  delivered on 18th  July 2019, in MCL & E Case  No. 333 of 2014, Thika  which were adverse  to the Appellant be set aside  and vacated.

3. That the  Application dated 30th April 2019  in MCL & E Case  No. 333 of 2014 Thika  by the Respondent  be dismissed with cost to the Appellant .

The grounds upon which the  Appeal are grounded are ;

1.  That the Learned  magistrate erred in Law and in fact by introducing  a new issue  that was never pleaded  canvassed or proved by  the Respondent  in respect of Respondents  intestate  in the suit land.

2.  That the Learned Magistrate erred in Law and in fact  by failing to uphold  the submissions  by the Appellant  that the Respondents  had introduced a new cause of action  in their Counter Claim  which completely prejudiced the  Appellant

3.  That the Learned  magistrate erred in law and in fact by failing to uphold the fact that the Appellant had testified and closed her case on 23rd September  2015, and what was pending  since then was the Respondents  Defence hearing.

4.  That the  Learned Magistrate erred in Law and in fact  by failing to uphold that the Respondent were guilty  of inordinate delay  as their Defence was filed way back  in 2014,  on several occasions  caused severally  adjournments  of this suit

5.  That the learned Magistrate erred in law and in fact  by falling to uphold  that the Respondent had  pleaded  wrong  suit  property  being Ruiru / Kiu Block 2/2014  which was never in contention  in suit pleadings  and thus introducing a new cause of action  not initially pleaded.

6.  That the Learned  Magistrate erred in Law  and in fact by failing to  explicitly  give a timeline  to the Respondents to file and serve their intended Amended  Defence and  Defence to counter claim whereas  giving the Appellant  strict timeline to allegedly  file a reply and have it served  within 14 days  f the ruling  which s prejudicial and biased  to the Appellant herein.

7.  That the Learned Magistrate  erred in Law and in fact  by failing to uphold and state that the  Appellant’s   suit stood re opened  in his wise decision  which is prejudicial  and clearly understood  as to what terms  on how to  proceed from there.

8.  That the Learned  magistrate  erred in Law and in fact  by failing to indicate  that the Appellant was to reply to an Amended defence and not a Defence as alleged and openly showing  favour by  granting  a tight timeline  to the Appellant  to reply  to the alleged  Defence and Counter Claim  notwithstanding  that the Respondent  were never given  any strict guidelines  to file their alleged  Defence and  Counter claim  which was prejudicial to the Appellant.

9.  That the Learned  Magistrate erred in Law  and in fact in failing  to give proper directions  on the way forward  this suit ought to proceed and arm twisting  the parties  by giving a hearing date in a months time  without allowing time for compliance  on pre trial issues  emanating  from the alleged  Counter Claim  having introduced a new party  which is prejudicial  and quiet biased to the Appellant  considering  that the Respondent had included new cause of action  and thereby arrived  at an erroneous decision.

10.  That the Learned Magistrate erred in Law and in fact  by failing  to appreciate  the gravity of the Appellant’s  evidence and submissions.

The Appeal was canvassed  by way of written submissions  and the Appellant  through the Law Firm of  Kibathi & Company   Advocates,   filed her written submissions  dated 31st May 2021,  and submitted  that in the case of  Abdul Karim Khan…Vs… Mohamed Roshan ( 1965)  EA 289,  the Court laid down  the principles  that the Courts will not permit  an amendment  that is inconsistent  with the original pleading, which entirely alters the nature of the Defence  or Plaint . It was further submitted  that the  Amendment  that are sought,  introduce a new cause of action  founded partly in fraud  and false misrepresentations . That the said actions are  in tort and  ought to have  been  brought before the  lapse of three years.

It was the Appellant’s further submissions that in as much as amendment may be sought at any time of the proceedings, but that at this level, of the proceedings an amendment that is not superficial in nature, but substantial may be difficult to procure as there is a probability of the same being highly prejudicial to the Appellant,  as the  party will have closed their case and may not  have a chance to re open it,  in order to challenge any new matter that may have been raised.  That the trial Court entered into  the arena of Succession  Law that was never pleaded  nor an issue  herein being intestacy . Further, that the  land  in dispute is not registered in the name of any Deceased person  and that the said issue has not been pleaded by any party and must not be raised  in this case . The Court was therefore urged to allow the Appeal.

The Respondents filed their written submissions through the Law Firm of  Echesa & Bwire  Advocates LLP, dated 29th June 2021, and submitted that  the mentioning and or inclusion of  the word intestate  in instead of  the word interest in the trial Court’s Ruling was  a pure typographical error,  and the same can be cured by the trial Court on its own motion  as no issue of succession was  ever pleaded by either party  and it is only logical that the same was a clerical error. That  Applications for amendment of pleadings  are guided by the provisions of  Order 8 Rule  3 of the Civil Procedure 2010.  Further, that the Defence filed by the Respondent’s previous Advocates is a mere denial  and does not offer  an elaborate purport of the events  and by setting aside  of the ruling by the trial Court  and allowing the  matter to proceed in absence of  the amendment,  already effected, the Court shall cripple the trial Court as the Court shall not  effectively determine  the substantive merits  of the case . The Respondents relied on the case of  Institute for Social  Accountability & Another …vs… Parliament of Kenya  & 3 others  ( 20140 eklr  where the Court held that ;

“ the object of the amendment of pleadings  is to enable  the parties to alter their pleadings  so as to ensure  that the litigation  between them is conducted not on the  false hypothesis  of the facts  already pleaded  or the relief  or remedy already  claimed, but rather on the basis  of the true state  of facts  which the parties  really and finally intend  to rely on. The power of amendment  makes the function  of the Court more effective  in determining the substantive  merits of the case  rather than holding  it captive  to form of the action  or proceedings,”

That the   Respondents are apprehensive  of a possible miscarriage  of justice unless the amendment is allowed. That in determining when  an amendment  can be made,  the Court ought to be guided by the provisions of  Order 8 Rule  5(1)  of the Civil Procedure Rule, where the Civil Procedure provides that  the discretion may  be exercised  at any stage of the proceedings and that is to say before  or at the trial, after  the trial,  after the judgment  or on appeal and on this  the  Respondents relied  on the case of  Martin Wesula Machyo  …Vs…  Housing  Finance Company   of Kenya  Limited  & Another  ( 2015) where the Court held that

“…mere  delay is not  a ground  for declining  leave to amend  but that such delay  must  be one likely  to prejudice  the other party beyond  monetary compensation . In my view if no prejudice  which cannot be compensated  by an award of cost  will be   visited upon  the Defendants  if the  Application for amendment  is allowed as the Defendants will have the opportunity to respond  to the amendment if they so wish .’

That  the above  precedent confirms  that the trial  Court has wide and unfettered discretion  to allow amendment  of claim provided that  it is not after an inordinate delay  or it would occasion  prejudice to the other  side . That  the amendment  is being sought after the close of the  Appellant’s case  and the same is not too late in the day  and the  Appellants will have an opportunity to  fashion a Defence  and give evidence to counter  the issues by the amendment, as she is the 2nd Defendant in  the Counter Claim.

That it is trite that the mistake of the Counsel should not be visited in  an innocent litigant as the Respondents  are laymen and they have been diligently attending Court . It was therefore submitted that the Application was without any form of delay.

That if the Court allows the Appeal, the Respondents will be forced to file another suit and  the same will occasion  multiplicity  of suits  over the same  suit property.  It was further submitted that  the facts raised in the amendment  did not raise  any new issue  , case and or new  ground that changes  the action  into one  of a substantially  different character,  which could  more conveniently  be  made the substance of a fresh suit . That the amendment  offers the genesis of the proprietorship,  of the suit property  and through the amendment, the trial Court will be able to  effectively determine  the genesis of the case.

It was further submitted  that the  amendments herein were  done in good faith  and would aid the Court  in determining  the real question  in controversy  as they are aimed at aiding  the efficient determination  of the suit . The Court was urged  to consider that  the advantage  of granting the Application  guaranteed the possibility  that all claims relating to the suit property  may be resolved  in one suit. That  the drafting  of the Application  before the trial Court  seeking to amend the pleadings as filed  by previous  Counsel, the Respondents  made reference  to the suit property as being L.R 2/2014,instead of LR 2/4014,  whereof  to an inadvertent  typographical  error, the Respondents  replaced the “4” with a “2” and  that the same was purely a typographical error. That no prejudice was visited upon the Appellant as she was allowed to file her Defence  and Counter Claim and if the period was not sufficient, she ought to have sought for extension.. Further, that the trial  Court  acknowledges  that the  suit stood re opened.  Further that it is in the interest of justice that the amendment be allowed.

Being a first appeal, it is the duty  this Court to re-evaluate the evidence led before the trial court both on points of law and facts and come up with its own findings and conclusions. See  the  case of Kamau …Vs…Mungai [2006] 1 KLR 15,where the Court  held that;

“Being a first appeal, it is the duty of the court to re-evaluate the evidence, assess it and reach its own conclusions remembering that it had neither seen nor heard witnesses hence making due allowance for that.”

Further as the Court determines this Appeal, it takes into account that it will only interfere with the discretion of the trial Court where it is shown that the said discretion was exercised contrary to the law or that the trial Magistrate misapprehended the applicable law and failed to take into account a relevant factor or took into account an irrelevant factor or that on the facts and law as known, the decision is plainly wrong. See the case of Ocean Freight Shipping Co. Ltd….Vs.. Oakdale Commodities Ltd(1997)eKLR, Civil App.No.198  of 1995,where the Court held that:-

“This is of course not an appeal to us from the decision of the single Judge. The discretion given by Rule 4 is exercised on behalf of the court by a single Judge and for a full bench to interfere with the exercise of the discretion, it must be shown that the discretion was exercised contrary to law, i.e. that the single Judge misapprehended the applicable law, or that he failed to take into account a relevant factor, or took into account an irrelevant one or that on the facts and the law as they are known, the decision is plainly wrong”.

The Court has carefully read and considered the Written Submissions, the Record of Appeal the grounds thereof and the Judgment by the trial Court and finds that the issue for determination is Whether the Appeal is merited.

The  Appellant seeks to  set aside the decision and order of the trial court  that allowed the Respondents   to  file an Amended  Defence, and Counter Claim. Before the determination on whether the Appeal is merited, the Court will first seek to   determine certain issues raised by the Appellant  being that the Court  erred by introducing  an issue that  was never pleaded by the parties with regards to the suit being Intestate.

The Court has gone through the Ruling dated 18th July 2019, by the  trail Court and notes that the Court stated;

“….did not  disclose the Defendants  intestate  in the suit land  and that the intended amendment seeks  to cure  that….’

Having holistically read the  said determination, the Court concurs with the  Respondents that  the same may have been a typographical error, and could not have meant intestate but rather interest, in  the suit, as no other findings have been made and or alluded to with regards to intestacy.

In order to determine whether the Appeal is merited or not, the Court will have to re-evaluate the evidence and  find whether the Application by the Respondents was merited. The Respondents in   the Application dated 15th  April 2019, had sought  for leave  to amend the   Defence . In its draft Defence, the   Respondents had also annexed a  Counter Claim. It is not in doubt that the  Plaintiff’s suit was heard on  9th July 2014, and the instant Application was  filed  in 2019. The reason  that  the Respondents have  given in seeking to  Amend  the Defence is that  their previous Advocates had filed a Defence that did not  offer elaborate purport of  events and facts  in the present dispute and therefore they are seeking to cure the same to enable the  Court to efficiently and effectively adjudicate upon the issues.

The Court is guided by the provisions of Order 8, Rule 3 of the Civil Procedure Rules which provides as follows:

“  (1) Subject to Order1, Rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.”

Further the principles that should guide the court in dealing with applications for amendments are elaborated in Mulla, the Code of Civil Procedure, 18th Ed, Vol 2 pages 1751-1752, which has been cited in various authorities including the case of Coffee Board of Kenya V Thika Coffee Mills Limited & 2 Others (2014) eKLR, where the Court held that ;

i.   Amendments should be allowed which are necessary for determination of the real controversies in the suit;

ii. The proposed amendment should not alter and be a substitute of the cause of action on the basis of which the original list was raised;

iii. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of fact would not be allowed to be incorporate by means of amendments;

iv. Proposed amendments should not cause prejudice to the other side which cannot be compensated by means of costs;

v.  Amendments of a claim or relief barred by time should not be allowed;

vi. No amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time

vii. No party should suffer on account of the technicalities of law and amendment should be allowed to minimize the litigation between the parties

viii.  The delay in filing the petitions for amendment should be properly compensated by costs

ix. Error or mistake, which is not fraudulent, should not be made the ground for rejecting the application for amendment of pleadings”

The above being the principles that guide the Court in either allowing or disallowing an Application for leave to Amend pleadings, the Court has carefully read and considered the Draft Amended Defence and Counter Claim to identify whether the said principles are met. Having gone through the same, the Court notes that in the Amended Statement of Defence, the Respondents are merely responding to the averments in the Plaint and   responding to issues that have been raised in the Plaint. Further, in the Counter Claim, the Respondents have alleged that the cause of action arose on or about March 2013, when the   Appellant began development, the Application having been brought in 2019, it is therefore not in doubt that the same is not barred by time.

Upon further perusal of the Counter Claim, the Court notes that the reference is to the instant suit property, and that the Respondents have sought to give an account of the happenings regarding the acquisition of the suit property. The Court therefore finds and holds that no new cause of action has been raised, as the same relates to the instant suit property and the amendments seeks to brings facts that the Respondents seeks to rely on. Consequently, the Court finds and holds that the amendment is necessary to enable the Court determines the issues in dispute.

The Court notes that the Amendment was brought   after the Appellant had already given her evidence. In the case of Suleiman v Karasha ]1989]eKLRthe Court of Appeal held that:

“Under the Civil Procedure Rules, the parties can amend their pleading with the leave of the court at any time before judgment. Such amendment would clearly set the issues in dispute to enable the Court to arrive at a just decision. It does not matter if the hearing has been concluded but the court has to consider the application for amendment and give effect to it as it may deem just.”

The trial Court in its Ruling noted that greater justice will be served in allowing the intended amendments as these will allow the Court to Succinctly adjudicate over all the issues in this matter. It is evident that a Court sitting on Appeal will only interfere with the discretion of the trial Court, where it is shown that the said discretion was exercised contrary to the law or that the trial Magistrate misapprehended the applicable law and failed to take into account a relevant factor or took into account an irrelevant factor or that on the facts and law as known, the decision is plainly wrong. Having gone through the trial Court’s determination, the Court finds no reason to interfere with the said determination.

However, the Court notes that   parties are responsible for the inactions of their Advocates, if they chose to be represented by the said Advocates. The delay of 5 years was a long time and the same having come after the Appellant had tendered her evidence, it would be in the interest of justice that at the very least the Appellant is compensated by way of costs

The Appellant has also faulted the trial Court on various issues including failing to find that her case stood closed and failing to give proper directions on the way forward. The Court having gone through the Ruling notes that the trial Court did give directions on how to proceed and allowed the Appellant to adduce any evidence thereby effectively re-opening the Appellant’s case.

Having now carefully re-evaluated and re-assessed the available evidence before the trial Court, and the Memorandum of Appeal, together with the written submissions, the Court finds that the trial Magistrate arrived at a proper determination and this Court finds no reason to upset the same. However, the Court will grant the appellant   throw away costs of Kshs. 50,000/= to compensate her for the lost time.

The upshot of the foregoing is that the Appellant’s Appeal is found not merited and consequently the said Appeal is disallowed and the Ruling and order of the trial court is upheld. The Respondents will pay a throw away costs of Kshs. 50,000/= to the Appellant.  Costs of the Appeal to be in cause.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 30TH DAY OF SEPTEMBER, 2021.

L. GACHERU

JUDGE

Court Assistant – Kuiyaki