Jiweze Development Ltd & 2 others v Jim K. Kairu & another [2017] KEHC 267 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC NO. 89 OF 2015

JIWEZE DEVELOPMENT LTD & 2 OTHERS....................PLAINTIFFS

VERSUS

JIM K. KAIRU & ANOTHER................................................DEFENDANT

RULING

(Application to amend defence; application not opposed; application allowed).

1. The application before me is that dated 3 July 2017 filed by the defendants. It is an application brought pursuant to the provisions inter alia of Order 8 Rules 3 and 5, and principally seeks orders for leave to amend the defence.

2. This suit was commenced by way of a plaint which was filed on 26 March 2015. In the plaint, the plaintiffs pleaded that they are the owners of the land parcel numbers Kiambogo/Kiambogo Block 2/19435, 19436, 19437, 19441, 19442, 19443, 19445, 19446, 19447, 19448, 19449, 19450, 19451, 19456, 19460, 19461, and 19287 (Mwariki) (the suit properties) and that the defendants have been interfering with the same without any colour of right. In the suit, the plaintiffs inter alia want a permanent injunction to have the defendants restrained from the suit properties.

3. The case of the plaintiffs is that the 1st plaintiff company purchased a land parcel Kiambogo/Kiambogo Block 2/14285 (Mwariki) from the previous owner on 2 February 2011. After purchase, they proceeded to subdivide the land into 39 plots which brought forth the land parcels Kiambogo/Kiambogo Block 2/ 19435 - 19473. They sold the rest  but retained the parcel numbers 19435, 19436, 19437, 19441, 19442, 19443, 19445, 19446, 194447, 19448, 19449, 19450, 19451, 19456, 19460, and 19461. Later the 2nd plaintiff purchased the parcel numbers 19445-19450. On his part, the 3rd plaintiff purchased the land parcel No. 14287 from one Lucy Wanjiru Njoroge and is now the registered proprietor. Despite their proprietorship, it is their case that the defendants have been interfering with the suit properties by tampering with the beacons, fences and illegally ploughing the same.

4. The defendants entered appearance and filed defence. They pleaded that the 2nd defendant, being the registered owner of the land parcel Kiambogo/Kiambogo Block 2 (Mwariki Farm), subdivided the said land and left a land parcel No. 541 as a public utility plot for purposes of constructing a secondary school. They pleaded that the said land was irregularly registered in the names of the plaintiffs. It was pleaded that the 1st defendant is chairman of the 1st defendant's Board of Directors and that he has never interfered with the plaintiff's activities as alleged.

5. I have seen that in the subject application, the defendants wish to amend their defence so as to include a counterclaim. They essentially wish to assert that the Plot No. 541 is a public utility plot and that the plaintiffs did not follow proper procedure in converting the said plot to private property. In their counterclaim, they inter alia seek orders to have cancelled, all titles issued out of the land parcel No. 541.

6. The application is not opposed by the plaintiff and I have considered it.

7. Courts are usually liberal when it comes to allowing applications for amendment. As I have mentioned the application seeks to amend the defence to include a counterclaim. I do not think that any prejudice will be caused to the plaintiff if I am to allow the application to amend as they will of course have opportunity to file a defence to the counterclaim. Although I am allowing the amendment, I have not really seen the connection between what the plaintiffs own and the claimed land parcel No. 541 in the counterclaim. Probably all issues will come out clearly in the course of time.

8. Given the above, I allow the application by the defendants to amend their defence. I direct that the amended defence be filed and served together with all documents that the defendant wishes to rely on during trial, and statements of witnesses within 14 days. Upon service, the plaintiff has 7 days to file and serve its reply to defence and defence to counterclaim.

9. On costs, the same will be to the plaintiffs as the defendants had opportunity to properly plead their case in the first instance.

10. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 9th day of November 2017.

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU

In presence of : -

Mr. C.K Langat holding brief for Mr. Akang’o for the defendants/applicants.

No appearance on part of counsel for the plaintiff/respondent.

Court Assistant: Carlton Toroitich.

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU