Mwangi v Kanyungo & 2 others [2024] KEELC 3743 (KLR)

Mwangi v Kanyungo & 2 others (Environment & Land Case E178 of 2023) [2024] KEELC 3743 (KLR) (24 April 2024) (Ruling)

Neutral citation: [2024] KEELC 3743 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E178 of 2023

LN Mbugua, J

April 24, 2024

Between

Zipporah Wairimu Mwangi

Plaintiff

and

Josephat Kanyungo

Defendant

and

The Chief Land Registrar

1st Proposed Defendant

The Nairobi City County Government

2nd Proposed Defendant

Ruling

1. The 1st Defendant’s Notice of Motion dated 14. 2.2024 is for determination. He seeks leave to amend his statement of defence and counterclaim dated 2. 10. 2023 to join the Chief Land Registrar and the Nairobi City County as Defendants as well as leave to file a further list of documents.

2. The application is based on grounds on its face and on the 1st Defendant’s supporting affidavit sworn on 14. 2.2024. He avers that he is the administrator of the Estate of Symon Githae Kanyugo (deceased) who was a registered member of Kayole Spring Valley Resettlement Scheme having purchased the property formerly known as Plot No. 684 Kayole Spring Valley Resettlement scheme and now known as Nairobi /Block 190/2209.

3. He avers that in her pleadings, the Plaintiff contends that she purchased the suit property from one Francis Mutuku who had allegedly in turn purchased that land from Salome Flassie Waithira Mutugi, a widow to Symon Githae Kanyugo (deceased).

4. He contends that at the time of the purported sale and transfer, succession proceedings relating to the estate of the deceased had not commenced, thus the parties in the alleged sale transaction had no capacity to transact.

5. That despite the intended 3rd Defendant being aware that the suit property had been illegally transferred to the Plaintiff, it proceeded to execute the transfer instrument for the suit parcel in favour of the Plaintiff.

6. That further, the Plaintiff and the intended 3rd Defendant caused the intended 2nd Defendant to register the transfer, process andissue the title over the suit property in the name of the Plaintiff which action is an affront to the deceased’s estate’s constitutional rights to protection of their right to property.

7. The application is unopposed.

8. The applicant filed submissions dated 15. 3.2024 which I have duly considered.

9. The provisions of Order 8 Rule 5 (1) of the Civil Procedure gives the court discretion to allow amendment of pleadings. While applying the said provision in Diamond Trust Bank Kenya Limited v John Wakaba Joseph & another [2013] eKLR, the court stated that:“…….Order 8 Rules 3 and 5 of the Civil Procedure Rules gives the court discretion to allow amendments at any stage of the proceedings in order to bring forth all issues in dispute between the parties for exhaustive and conclusive determination. The significant and guiding principle is to do justice between the parties. This can only be achieved by having all issues in dispute being brought forth for the Court to determine them. The law is clear that amendments will be freely allowed at any stage of proceedings provided no injustice is caused to the opposite party.”

10. The court has considered the application and the law. The 1st Defendant has demonstrated that the joinder of the proposed 2nd and 3rd Defendants is necessary as their participation in these proceedings will enable the court to unravel whether the title to the suit parcel was procedurally issued to the Plaintiff. Further, the court has considered that this case is yet to take off and that so far, the application is unopposed.

11. In the circumstances, the application is allowed with no orders as to costs. The applicant is to file and serve the amended Defence and Counter Claim alongside comprehensive witness statements and documentary evidence upon all parties within 21 days failure to which the orders granted herein shall lapse.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF APRIL, 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Court assistant: Eddel