Monica Kalekye Kyule v James Juma, Samuel Njuguna Gatu t/a Gatu Properties & Alice Wamuyu Gatu t/a Gatu Properties [2021] KEELC 1927 (KLR) | Amendment Of Pleadings | Esheria

Monica Kalekye Kyule v James Juma, Samuel Njuguna Gatu t/a Gatu Properties & Alice Wamuyu Gatu t/a Gatu Properties [2021] KEELC 1927 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC APPEAL NO. 42 OF 2019

MONICA KALEKYE KYULE................APPELLANT

AND

JAMES JUMA .................................1ST RESPONDENT

SAMUEL NJUGUNA GATU T/A GATU

PROPERTIES................................. 2ND RESPONDENT

ALICE WAMUYU GATU T/A GATU

PROPERTIES....................................3RD RESPONDENT

(Being an Appeal  from the whole of the Ruling delivered  by the Honourable A. M Maina. Senior

Principal Magistrate on the 14th May 2019)

JUDGMENT

By a Notice of Motion Application dated  9th December 2015, the  Plaintiff (Appellant) sought for orders against  the Defendants  (Respondents) that;

1.  That  this Honourable Court  be pleased  to grant the  Applicant leave  to serve the  2nd & 3rd Respondents by way of  registered  mail  vide post  office Box Number  436 Ruiru.

2.  That this Honourable  Court be pleased  to grant the Applicant leave  to includeJohn Thuo  Ndungu  and Stephen Wainaina  as 4th & 5th  Defendants respectively.

3.  That this Honourable Court  be pleased to grant  the Applicant  leave to amend  the Plaint dated 21st July 2014and filed in Court on the same day.

4.  That the amended  copy be  construed to  be part of  Court record  on payment  of the Court fees(if any)

5.  Costs of this Application  be in the cause.

The Application was premised on the grounds that the  Applicant  and her Advocates were unable  to trace the Physical Address  of the 2nd & 3rd Defendants ( Respondents)  that however since they filed their statement of Defence and  reflected their Postal  Address Box Number436Ruiru and so they wished to serve them  by way of registered post. That  two other parties  alleged that they were  once owners  of the said suit property,  thus the need for them to  be joined as parties for the Court  to expeditiously  determine the matter. Further, that  for the Court  to hear and determine  this matter  conclusively, the  Applicant prayed  for leave  to amend  her pleadings  and in particular  the Plaint  dated 21st  July 2015. That the Plaintiff (Appellant)  will suffer irreparable  damage if the  prayers sought  are not allowed.

In her Supporting Affidavit, Monica  Kalekye  Kyule reiterated the  contents of the grounds in support of the Application  and averred that  she would suffer irreparable damage  if  she is not  allowed to  amend his pleadings .

The Application  was opposed and  James Juma,  swore a Replying Affidavit on  19th January 2016,  and averred that  on 24th  September 2015, when the matter came up for hearing, the Court  ordered the Plaintiff ( Appellant)  to serve the  2nd & 3rd Respondents by way of  substituted service. Further that JohnThuo Ndungu and Stephen Wainaina,are witnesses and have sworn in their witness statements and as such already parties to the suit and are due to appear in Court and their witness statements have been filed and served upon the Plaintiff. That the Plaintiff (Appellant) has no claim or dispute  against the intended Defendants,  and it would be improper to  join them  as Defendants.

Further that the  Plaintiff( Appellant)   filed the suit  on 21st July 2014 and has come to Court too late in the day with an Application to amend the  Plaint. That the Application to  enjoin the witnesses as Defendants  is  an attempt to cure  what is evidently hopelessly and incurably defects that go to the root and substance of the purported claim. That he has been advised by his Advocates on record, which advice he believes to be true that  the intended Defendants are witnesses  and not necessary parties to the suit,  since the Plaintiff’s can address whatever issues  they desire to when the parties  appears before Court to give their evidence  and the suit can effectively be adjudicated  upon and settle  questions involved in the suit  without the need to enjoin the  said parties. That if orders sought are granted, he would be greatly  prejudiced as the  Plaintiff’s  intentions are to preempt  any Defence and water down his case. That the Application is meant to delay  the suit and buy time, which is against the spirit  of the Law.

The Application was canvassed by way of written submissions  and  on  14th May 2019, the Court  delivered its Ruling and dismissed the Application and stated that;-

“In summary I find that the present Application  was filed too late in the day. The delay in filing the same was not explained. The Application is therefore an afterthought. Further the intended two defendants  will be called as  the 1st Defendants  witnesses and the Court  will be able to determine the real questions  in controversy between the parties using their evidence  and the parties evidence. In the Premise I find that the Application  dated 9th December 2015  lacks merit and I proceed  to dismiss the same with costs to the 1st defendant. Pre Trial Direction  were taken way back  on 24th April 2015 and the Plaintiff is directed  to take steps to ensure  that the case is fully heard by 12th June 2019 as per the Court  orders given on 12th  February 2019.

The Appellant was aggrieved by the above decision and  by a Memorandum of Appeal dated  18th June 2019, appealed against the said decision and sought for orders that

1. This appeal  be allowed with costs

2. The Ruling  of the Honourable  Senior Principal  Magistrate be set aside and a proper  finding be made

3. The 120 days  time  limited for  the hearing  and determination  of the Appellant’s suit  is set aside varied and or vacated.

The grounds upon which the Memorandum of Appeal is grounded are;

1.  The learned trial Magistrate erred in Law by failing  to allow the amendment  of the  Applicant’s pleadings  in order to be able  to determine matters  in controversy  with finality between  or amongst the parties.

2.  The learned trial  Magistrate erred  in Law and in fact  in not finding that the Plaintiff/ respondent had  done all that  was necessary  to have this matter heard and determined  by limiting the time for hearing  of the main suit  to 120 days  from 12th February , 2019 to 12th June  2019 notwithstanding  that there  were other legal processes which was going on.

3.  The learned trial Magistrate  erred in law  and fact by  failing  to accord  the Appellant humble time  to litigate  her case. Notwithstanding  that it is indeed the  Plaintiff who fixed  the matter in the first instance for hearing  on 12th February 2019

4.  The learned trial Magistrate  erred in Law  and in fact  in basing  her findings  on irrelevant issues  not supported by evidence  adduced or  the applicable law  as clearly captured in her Ruling.

5.  The learned trial Magistrates decision is against the weight of evidence on a balance of probability.

6.  The Appellant shall upon receipt of the typed proceedings file a supplementary  memorandum of Appeal to include  other grounds and reasons that may become apparent.

7.  The learned trial Magistrate   erred in Law and in  fact  in denying the Appellant  his constitutional right  to a fair  hearing  by unreasonable, unfairly and injudiciously  in Ruling against the  Plaintiff.

The Court directed the Appeal be heard by way of written submissions and the Appellant through the Law Firm of Nzaku & Nzaku Advocates filed her written submissions dated 19th November 2020  and submitted that the trial Magistrate’s decision  not to allow the amendment  of the pleadings violates  her Constitutional rights to fair hearing  as the decision is prejudicial to  the Appellant’s case,  as it limits the ability of the Courts to determine  pertinent matters in controversy.  It was further submitted that failure to allow the amendment was unjust  as it limits the Appellant from pleading her case.

That the Appellant was guided by  Order 8 Rule 3 and Order 1 Rule  10(2)  of the Civil Procedure Rules 2010, which did not  stipulate a time limit  as to when a party may seek leave  to amend pleadings and enjoin parties. That the intended Defendants necessary  in determining the real issues contrary to the assertions by the trial  Court  as in being the initial proprietors, there is need to establish whether dealings were done  fraudulently.

The 1st Respondent filed his written submissions through the Law Firm of  Kiarie Joshua & Company Advocates  and submitted that allowing the Appeal will be an exercise in futility and or an academic  exercise  as  the Appellant has unfortunately  engaged the Court on 12th  June 2019, when the Appellant  filed the Memorandum of Appeal,  the suit stood dismissed  and there was no suit to appeal against  and she ought to have sought for a reinstatement of the suit. That  if the Court  allows the  Appeal and finds that  the trial Court  erred in dismissing  the Appellant’s Notice of Motion, then  parties will be faced  with a situation  wherein they will be going  to hear a matter that had  ceased to exist  upon lapse of 120 days,  and the same will be an exercise in futility. That the Appellant was indolent  and failed to prosecute  the suit since 12th  February 2019,  when the trial Court delivered the Ruling. The Court was therefore urged to dismiss the instant Appeal.

As this is a first Appeal, it is the Court’s duty to analyze and re-assess the evidence on record and reach its own independent decision in the matter as provided by Section 78of theCivil Procedure Act. See the case of Selle v Associated Motor Boat Co. [1968] EA 123 where the Court held that;-

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan(1955), 22 E. A. C. A. 270).

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 Mbogo vs Shah (1968) EA at Page 93, where the Court held that:-

“I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior Court unless it is satisfied that its decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted on because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

Having now carefully read and  considered the Record of Appeal, the  Grounds of Appeal, the written submissions by the parties and the Ruling, the Court and finds that the issues for determination are;

1. Whether there was an existent suit when the Appeal was filed

2.   Whether the Appeal is merited.

1. Whether there was an existent suit when the Appeal was filed

The 1st Respondent  has submitted that  the instant Appeal is an academic exercise as  the Appellant filed the Appeal  on 12th June 2019, on the date that  the  Court had ordered that the same be heard and determined. It is not in doubt that the Memorandum of Appeal is dated  10th June 2019, and the same was filed on 12th June 2019. It is further not in doubt that unless stay is granted, an Appeal does not automatically operate as stay of execution of any Court orders .

On  12th February 2019, the  Hon A.M Maina stated:-

“Application dated  9th December 2015 to be served  upon the Respondent’s  for hearing on 26th February 2019. The  Plaintiff  is directed to  take steps  to ensure that the case is  heard and determined within 120 days  of the date hereof  failure to which it will stand dismissed  for want of prosecution. This will be at the lapse of  120 days from  today.”

Further  when the matter came up  on 9th April 2019, to  confirm the filing of submissions,  Mr. Kinyanjui  holding brief for Mr.  Nzakurequested for time extension to which the Court  confirmed that the Appellant had been given 120 days. Further  when the Court delivered its Ruling on  14th May 2019, it made a specific order  that the Appellant do take steps  to ensure that the suit was fully heard and determined  by 12th June 2019,  which was the lapse of the 120 days. As already noted above by the Court, the  filing of the instant Appeal did not  operate as an automatic stay. The extension sought by the Appellant was never granted neither was  an Application  for stay ever sought.

This Appeal was filed on 12th June 2019.  It is  not in doubt that the  Ruling having been delivered on 14th May 2019, the Appellant had ample time within which to put their house in order which they failed to do. It is further not in doubt that as at 12th June 2019, the suit had not been heard and determined  and therefore as the orders of the Court had a rider, the suit stood dismissed   when the instant Appeal was filed and therefore there was no suit in existence.

2.  Whether the Appeal is merited

The Court having held that there was no  suit in existence at the time of filing the Appeal, it therefore follows that the Appeal is not anchored on any suit and therefore it is not merited.

The Upshot of the foregoing is that this Court finds and holds that  at the time the Appeal was filed, the  suit had been dismissed for failure by the  Appellant to  set it down for hearing and determination and therefore the Appeal is not anchored on any suit and thus the said Appeal is not merited. Consequently, this Appeal is dismissed entirely with costs to the 1st Respondent.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 24TH DAY OF SEPTEMBER, 2021

L. GACHERU

JUDGE

Court Assistant – Lucy