Mohamud Iltarakwa Kochale, Kochale Somo Jale, Issa Jitewe Gambare, David Tamasot Arakhole & Sekotey Seye (Suing on behalf of the residents ofLaisamis Constituency and Karare Ward of Marsabit County) v Lake Turkana Wind Power Ltd, Marsabit County Government, Attorney General, Chief Land Registrar & National Land Commission; Aaron Iiletele Lesiantam, Henery Parassian Sakaplo, Stephen Nakeno, Job Lmalasian Lengoys & Dair Lentipan (As representatives of the residents of Loiyangalani District, Marsabit County) (Interested Parties) [2020] KEELC 1072 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC CASE NO. 163 OF 2014

MOHAMUD ILTARAKWA KOCHALE................................................................1ST PLAINTIFF

KOCHALE SOMO JALE.......................................................................................2ND PLAINTIFF

ISSA JITEWE GAMBARE.....................................................................................3RD PLAINTIFF

DAVID TAMASOT ARAKHOLE..........................................................................4TH PLAINTIFF

SEKOTEY SEYE......................................................................................................5TH PLAINTIFF

(Suing on behalf of the residents of Laisamis Constituency and Karare Ward of Marsabit County)

VERSUS

LAKE TURKANA WIND POWER LTD............................................................1ST DEFENDANT

MARSABIT COUNTY GOVERNMENT...........................................................2ND DEFENDANT

THE ATTORNEY GENERAL.........................................................................…3RD DEFENDANT

CHIEF LAND REGISTRAR................................................................................4TH DEFENDANT

THE NATIONAL LAND COMMISSION...........................................................5TH DEFENDANT

AARON IILETELE LESIANTAM.......................................................1ST INTERESTED PARTY

HENERY PARASSIAN SAKAPLO.....................................................2ND INTERESTED PARTY

STEPHEN NAKENO.............................................................................3RD INTERESTED PARTY

JOB LMALASIAN LENGOYS............................................................4TH INTERESTED PARTY

DAIR LENTIPAN...................................................................................5TH INTERESTED PARTY

(As representatives of the residents of Loiyangalani District, Marsabit County)

RULING

1. The Plaintiffs have made an Application to amend prayer a) of the plaint dated the 14/10/14 to correct the description of one of the suit properties being LR 28031 to read LR No 28031/1.

2. The Plaintiff submitted that the suit property was correctly described in the body of the plaint and that there was a clerical mistake in the last part of the prayer with respect to the 1st property. It was submitted that all the defences filed in this suit in fact made reference to the correct parcel numbers and so was the evidence tendered in the trial. It was further submitted that the Defendants and the Interested parties would not suffer prejudice if the amendments were allowed because they would not be required to amend their pleadings or call for additional evidence.

3. The Interested Parties and the Defendants with the exception of the 2nd Defendant opposed the application for leave to amend. They contended that the application was made late in the day after the parties had filed their final submissions.

4. It was further contended that there was undue delay of about 6 years in making the amendments since the suit was filed in October 2014.

5. The Defendants and the Interested Parties submitted that they would suffer great prejudice if the application was to be allowed at the tail end of the trial process since they would not have an opportunity to call for additional evidence on the amended pleading.

6. The 1st Defendant relied on the case of Uchumi Supermarkets & Anor Vs Sidhi Investments Limited (2018) EKLR in which a single Judge of the CA dismissed an application for amendment of a memorandum of Appeal mainly on account of unexplained delay of 10 years.

7. The Court has considered the Plaintiffs application for leave to amend the plaint. The opposition by the 1st, 3rd 4th & 5th Defendants and the Interested Parties, the court has considered the material on record on this issue.

8. Under Order 8 Rule 5 of the Civil Procedure Rules the Court may grant an application for amendment if it is necessary in determining the real issues in controversy between the parties.

9. In the case of Eastern Bakery Vs.  Castelino (1958) EA 461, it was held that application to amend pleadings should be freely allowed if such amendments can be made without prejudice to other parties. And that there can be no prejudice if the other party can be compensated with an award of costs.

10. Similarly, in the case of Central Kenya Ltd vs Trust Bank & 5 others (2000) EKLRit was held that mere delay is not a ground for declining leave to amend and that it must be such delay as to occasion prejudice to the opposite party which is beyond compensation in costs.

11. In the Halsburys Laws of England 4th Edition Vol 36 para 76 it was held that an amendment for leave which seeks to repair an omission due to negligence or carelessness may nonetheless be granted if it can be made without injustice to the other side.

12. It is apparent from the record that the plaintiffs described the suit properties in the body of the plaint. It is also clear that the defences filed also described the suit properties in issue and that the evidence tendered at the trial revolved around the two suit properties LR No 28031/1 and 28031/2.

13. The court is satisfied that there is only one project which is the subject of the setting apart in dispute.

14. The court is satisfied that the misdescription of the suit property in prayer a) of the plaint is a merely a clerical error which did not mislead any of the parties to the suit.

15.  The Court notes that none of the parties have demonstrated that they would suffer any prejudice if the amendment is allowed.

16. Being satisfied that the application is meritorious, the court hereby allows the plaintiffs application for amendment with costs to the 1st, 3rd 4th & 5th Defendants and the Interested parties.

17. Orders accordingly.

DATED & DELIVERED AT MERU THIS 6TH DAY OF OCTOBER 2020

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J G KEMEI J          P M NJOROGE J              Y M ANGIMA J