Nancy Bomet, John Evans Arek & Fred Kinuthia v Jamaldin Yahya , Barnaba Agar, Nyandiero, Ali Bulls , Khadija Rrii, Kha Lfan Juma Suleiman, Samuel Ketai , Jennifer Kisuru Musiwa , Hellen Chepkemboi ,Pamela Chepkemboi , Mwangi Kawaya t/a Thinker’s Pub , Ezekiel Rema, Lucy Muthoni t/a Lucy’s Hotel, Joseph Mungai Kimani, Rebecca Sambeki t/a Sambeki Pub & Jairus Sawe t/a Wote Butchery [2016] KEELC 1208 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ENVIRONMENTAL AND LAND DIVISION

ELC CIVIL SUIT NO. 289 OF 2012

NANCY BOMET………………………… ……………….. 1ST PLAINTIFF

(Suing on behalf of Jamhuri East Residents Association in Her capacity as the Chairlady thereof)

JOHN EVANS AREK …………………………………..  2ND PLAINTIFF

(Suing on behalf of Jamhuri East Residents Association in his Capacity as the Secretary thereof)

FRED KINUTHIA …………………………………..……  3RD PLAINTIFF

(Suing on behalf of Jamhuri East Residents Association in his Capacity as the Treasurer thereof)

VERSUS

JAMALDIN YAHYA ……………………………………1ST DEFENDANT

BARNABA AGAR NYANDIERO……......…..………. 2ND  DEFENDANT

ALI BULLS …………………………....………..……  3RD DEFENDANT

KHADIJA RRII ………………………..…………..…  4TH DEFENDANT

KHA LFAN JUMA SULEIMAN……….....…………….5TH  DEFENDANT

SAMUEL KETAI …………………………………….….6TH DEFENDANT

JENNIFER KISURU MUSIWA …….....……….……..  7TH DEFENDANT

HELLEN CHEPKEMBOI ………..…………….……..  8TH DEFENDANT

PAMELA CHEPKEMBOI ………...………………….. 9TH DEFENDANT

MWANGI KAWAYA t/a THINKER’S PUB ..........….  10TH DEFENDANT

EZEKIEL REMA………………………..…………… 11TH  DEFENDANT

LUCY MUTHONI t/a LUCY’S HOTEL….......……… 12TH  DEFENDANT

JOSEPH MUNGAI KIMANI………………..…………13TH DEFENDANT

REBECCA SAMBEKI t/a SAMBEKI PUB…......……14TH DEFENDANT

JAIRUS SAWE t/a WOTE BUTCHERY ……........….15TH DEFENDANT

RULING

Coming up before me for determination is the Notice of Motion dated 15th October 2014 (hereinafter referred to as the “Second Application”) in which the Plaintiffs/Applicants seek for the following orders:

That leave be and is hereby granted to the Plaintiffs/Applicants to file and serve an Amended Plaint

The Amended Plaint attached be deemed duly filed

That the Honourable Court be pleased to review the order granted on the 2nd day of May, 2014 to include the following parcels of land:

Nairobi/Block 62/749

Nairobi/Block 62/750

Nairobi/Block 62/751

Nairobi/Block 62/753

Nairobi/Block 62/768

Nairobi/Block 62/770

Nairobi/Block 62/765

Nairobi/Block 62/777

Nairobi/Block 62/779

Nairobi/Block 62/762

Nairobi/Block 62/763

Nairobi/Block 62/764

Nairobi/Block 62/766

Nairobi/Block 62/767

Nairobi/Block 62/752

Nairobi/Block 62/769

Nairobi/Block 62/771

Nairobi/Block 62/772

Nairobi/Block 62/773

Nairobi/Block 62/774

Nairobi/Block 62/775

Nairobi/Block 62/776

Nairobi/Block 62/778

Nairobi/Block 62/760

Nairobi/Block 62/761

L.R. No. 209/20300

L.R No. 209/20661

Nairobi/Block 62/799

Nairobi/Block 62/780

Nairobi/Block 62/781

Nairobi/Block 62/782

Nairobi/Block 62/783

Nairobi/Block 62/784

Nairobi/Block 62/787

Nairobi/Block 62/788

Nairobi/Block 62/789

Nairobi/Block 62/791

Nairobi/Block 62/792

Nairobi/Block 62/795

Nairobi/Block 62/797

Nairobi/Block 62/796

Costs of this Application be in the cause.

The Second Application is premised on the grounds set out on its face together with the Supporting Affidavit of Thuita Ritho, a member of JERA, sworn on 15th October 2014, in which he averred that pursuant to a Notice of Motion dated 24th May 2012 (hereinafter referred to as the “First Application”), this court granted a temporary injunction and a mandatory order in respect of 9 parcels of land whose Certificates of Lease were adduced at the material time of filing the First Application while some Certificates of Lease were inadvertently not produced in support of the First Application due to loss or misplacement by the various registered owners. He further averred that the said Certificates of Leases could not be adduced previously without exercising due diligence search as some of the owners were not available having travelled out of the country or up country without any forwarding address or telephone contacts. He stated that the orders earlier granted by the court pursuant to the First Application may be rendered nugatory and in vain as the Defendants shall continue to occupy all the other neighboring parcels of land omitted in the order unless the order is reviewed to include all the parcels of land for which Certificates of Lease have now been adduced.

The Second Application has been opposed by the Defendants who filed Grounds of Opposition dated 21st October 2014 together with a Replying Affidavit deponed by the sixth defendant, Samuel Ketai, where they stated that the order sought by the applicants cannot be granted by a single application and that in the event the Plaintiffs/Applicants are granted leave to amend their plaint, fair play demands that the Defendants/Respondents should be afforded an opportunity to amend their defence before further proceedings can be undertaken. He stated that it had not been demonstrated that the new proprietors have authorized the deponent to the supporting affidavit to swear the affidavit on their behalf and there is no demonstration that the proprietors were unavailable at the inception of the suit therefore the Second Application does not meet the threshold set under Order 45 of the Civil Procedure Rules, 2010. He further stated that there is no evidence that the new proprietors are members of the Association suing on their behalf and that there is no demonstration that the proprietors are in possession of the suit properties cited therefore the Second Application should be dismissed with costs.

Parties canvassed the Second Application by way of written submissions. The Plaintiffs submitted that Certificates of Title were sacrosanct and indefeasible under section 26(1) of the Land Registration Act No 3 of 2012 therefore the Defendants are in breach of the law by continuing to unlawfully occupy the Plaintiffs’ properties. That under Order 45 the grounds for allowing review was upon discovery of new and important matter or evidence which after the exercise of due diligence was not within the applicant’s knowledge or could not be produced by him at the time when the decree was passed or made or on account of mistake or error apparent on the face of the record or for any other sufficient reason. The Plaintiffs/Applicants submitted that the titles listed above could not be produced prior to the order made on the 2nd May 2014 due to misplacement or absence of various members of the Association who have relocated abroad or upcountry upon retirement from active employment or business in Nairobi. They relied on the case of Tarlok Singh Nandhra and 3 others on behalf of the depositors of Trust Bank Limited vs. Robincahil and 8 others t/a KPMG Peat Marwick NBI HCCC 2155 of 2000 where Ringera J as he then was held that,

“….the named plaintiffs and the persons sought to be represented constitute numerous persons who have the same interest in the suit within the meaning of Order 8 (1) of the Civil Procedure Rules and that there is no discretion on the part of the Court to decline to allow an action which otherwise qualifies as a representative action to continue as such.”

On amendment of their plaint, the Plaintiffs/Applicants relied on the case of Philips, Harrison and Crossfield Ltd vs. Kassam [1982] KLR 458 where Hancox held that,

“Anapplication for leave to amend should be allowed if it is necessary for the purpose of determining the real questions in dispute between the parties and Leave to amend should be freely granted if the amendment can be made without prejudice which cannot be compensated by way of costs being occasioned”

The 1st, 2nd and 6th to 12th Defendants in their submissions stated that the Second Application does not adhere to the rules of amending pleadings under Order 8 of the Civil Procedure Rules, 2010 in that the amendment should not cause injustice to the other side and that the injustice should not be able to be compensated by costs. They further stated that the introduction of the new properties will introduce new parties as defendants and the order would have been issued without hearing them which will amount to injustice. They relied on the case of Eastern Bakery vs. Castelino (1958) EA 461.

I have duly considered the Second Application and the affidavits in support and opposition to the application and submissions filed by the parties. The issue arising for my determination is whether to allow the amendment of the plaint as requested by the Plaintiffs/Applicants and further whether to review the orders issued in the First Application to extend to the additional parcels of land set out in the prayer in the Second Application.

On the issue of amendment of the plaint, the applicable law is as follows:-

Order 2 Rule 15 of the Civil Procedure Rules, 2010 provides that,

“(1) At any stage of the proceedings the Court may order to be struck out or amended any pleading on the ground that:-

It discloses no reasonable cause of action or defence in law.

Its scandalous, frivolous or vexatious; or

It may prejudice, embarrass or delay the fair trial of the action; or

It’s otherwise an abuse of the Court process and may order the suit be stayed or dismissed or judgment to be entered accordingly as the case may be.”

In the Second Application, the Plaintiffs/Applicants seek to amend their Plaint filed herein through the introduction of additional parcels of land which were previously not included in the Plaint.

On the issue of the review of the order issued by this court in the First Application, the applicable law is as follows:-

Section 80 of the Civil Procedure Act provides that,

“Any person who considers himself aggrieved—

by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or

by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

Then Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides that:-

“(1) Any person considering himself aggrieved—

by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

by a decree or order from which no appeal is hereby allowed,and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

The Plaintiffs/Applicants have explained to the court that as at the time they filed the First Application which derived the order of 2nd May 2014, the Certificates of Leases that have now been brought in the Second Application could not have been made available because the owners of the said documents had either travelled out of the country or had not left any forwarding telephone contacts but they have now been found and have availed the said documents. They have explained that the lack of availing the said documents in the first place was because of logistical challenges in communication between the registered owners and Association. This court has weighed the explanation given by the Applicants and has also considered the Defendants’ claims that they would be prejudiced if other parties are included in this suit by virtue of the Certificate of Leases attached to this application and find that the defendant’s claim cannot stand for the reasons that the hearing of this suit has not commenced and therefore no prejudice will be occasioned to them. Further, this court appreciates the fact that the very foundation upon which any judicial system rests is that a party who comes to court shall be heard fairly and fully. The court is duty bound to hear all parties to the case and failure to do so is an error. It is also a right that a litigant should be permitted to bring his proceedings without hindrance and have his case decided. This is in tandem with the decision of the court in the case of Branco Arabe Espanol vs. Bank of Uganda (1999) 2 EA 22,wherein the court held that,

“The Administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits, and that errors, lapses should not necessarily debar a litigant from the pursuit of his right and unless a lack of adherence to rules renders the appeal process difficult and inoperative, it would seem that the main purpose of litigation, namely the hearing and determination of disputes, should be fastened rather than hindered”.

The Defendants will have the liberty to amend their defence after being served the amended Plaint.

Further to the above, I will allow the review of the orders issued on 2nd May 2014 in the First Application to include the parcels of land set out in prayer no. 3 of the Second Application only in respect of the temporary injunction but not the mandatory injunction. I also take the liberty to review the ruling in respect of the First Application to exclude the mandatory injunction. Costs in the cause.

It is so ordered.

DELIVERED AND SIGNED AT NAIROBI THIS 29TH

DAY OF JANUARY  2016.

MARY M. GITUMBI

JUDGE