Thomas Magut Sambu & Michael Nal Kipkirui v County Government Of Kericho & Bestlands Contractors [2019] KEELC 2378 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KERICHO

ELC CASE NO.59 OF 2015

THOMAS MAGUT SAMBU.......................................................................1ST PLAINTIFF

MICHAEL NAL KIPKIRUI......................................................................2ND PLAINTIFF

VERSUS

COUNTY GOVERNMENT OF KERICHO..........................................1ST DEFENDANT

BESTLANDS CONTRACTORS............................................................2ND DEFENDANT

RULING

Introduction

1. What is before me for determination is the Plaintiffs application dated 7th March 2019 for leave to amend the Plaint. The said application is premised on the grounds stated on the face of the Notice of Motion and the 2nd Plaintiff’s supporting affidavit sworn on the 7th day of March 2019.  It is the 2nd defendant’s contention that there is need to amend the Plaint to enjoin the District Land Registrar as a necessary party to this suit. He avers that the amendment is necessitated by the discovery made during the court’s visit to the suit land on 1st February 2019 as it appeared that a bigger portion of his land had been hived off during the expansion of the road passing next to his land.

2. The application is strenuously opposed by the Defendants through their Grounds of Opposition filed on 27th and 29th March 2019 respectively. The 1st Defendant argues that the application is an afterthought as the Plaintiffs seek to introduce a new cause of action inconsistent with the facts of the existing suit. This would be highly prejudicial to the defendants as the defendants had closed their case. It is the Defendants’ contention that the Plaintiff is engaging in a fishing expedition as he ought to have called the District Land Registrar as a witness if he wanted him to produce the 2nd plaintiff’s mutation forms.

3. On his part the 2nd Defendant argues that the application for leave to amend the plaint is coming late in the day and is highly prejudicial to the 2nd Defendant. He is of the view that the amendments go against the objective of the sections 1A and 1B of the Civil Procedure Act which is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes.

4. The application was prosecuted through the medium of written submissions filed by each of the parties.

Issues for determination

5. Having considered the application, Grounds of Opposition and rival submissions, the singular issue for determination is whether the amendment should be allowed.

Analysis and Determination

6. It is submission of counsel for the Plaintiffs that an application for amendment of pleadings can be made any time before judgment is delivered. He further submits that the amendment was necessitated by the findings made during the court’s visit to the suit property which happened after all the parties had testified. He is of the view that the Defendants will not be prejudiced by the proposed amendment.

7. Both Counsel for 1st and 2nd Respondents submitted that the amendments would amount to the Plaintiff going on a fishing expedition. It is their contention that the proposed amendments amount to the Plaintiff shifting goal posts by introducing new matters to the plaint and that the proposed amendments would prejudice the Defendants.

8. Counsel for the 1st Defendant wonders whether it is necessary to enjoin the District Land Registrar merely for purposes of producing the Registry Index Map and Mutation forms. He argues that this could have been achieved by merely summoning the Land Registrar to come and produce these documents without necessarily amending the plaint since the Plaintiffs are not seeking any relief against the Land Registrar. He submits that these documents can be produced by the District Surveyor who accompanied the Court during the visit to the suit property. He further argues that the mutation forms will not add any value to the proceeding as they will only reveal the size of the Plaintiff’s land and not the road, yet the defendants have nothing to do with the size of the plaintiff’s land.

9. On the other hand, counsel for the 2nd Defendant argues that the amendment is coming very late in the day, five years after the suit was filed. He submits that the amendment will prejudice the rights of the 2nd Defendant since the Limitation of Actions will not allow the 2nd Defendant to reply. With respect, I do not agree with counsel that the Limitation of Actions Act bars the 2nd Respondent from responding to the amendment sought as the cause of action arose in 2014 which is 5 years ago and is therefore still within the period of limitation.

10. Order 8 Rule 3 (1) of the Civil Procedure Rules provides that:

“Subject to order 1 rules 9 and 10. Order 24 rule 3,4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.”

11. Order 8 Rule 3 (5) provides that:

“An amendment may be allowed under subrule 2 notwithstanding that its effect will be to add or substitute a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has been claimed in the suit by the party applying for leave to make the amendment.”

12. Order 1 Rule 10 (2) provides that:

“The court may at any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the court to be just, order that the name of any party improperly joined either as plaintiff or defendant be struck out and that the name of any person who ought to have been enjoined whether as plaintiff or defendant or whose presence before the court may be necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit be added.”

13. In the case ofOchieng v First National Bank of Chicago Civil Appeal No. 147 of 1991cited in the case ofSt. Patrick ‘s Hill Scholl v Bank of Africa Kenya Limited [2018] eKLR the Court of Appeal set out the principles under which courts may grant leave to amend pleadings as follows:

a)  The power of the court to allow amendments is intended to determine the true substantive merits of the case.

b)  The amendment should be timeously applied for

c)   The power to amend can be exercised by the court at any stage of the proceedings

d)  As a general rule, however late the amendment is sought to be made, it should be allowed if made in good faith provided costs compensate the other side

e) The plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint, the Defendant would be deprived of his right to rely on the Limitations Act subject however to the powers of the court to still allow an amendment notwithstanding the current period of limitation.

14. Whether or not the Plaintiff is entitled to leave to amend his plaint in accordance with the rules is a discretion to be exercised by the court judicially and within the principles of natural justice. In the case ofReg V Gaming Board ex Benaline 1970 2 QB 17Lord Denning observed as follows:

“It is not possible to lay down rigid rules as to when the principle of natural justice are to apply nor as to their scope and extent. Everything depends on the subject matter”

15. In Josiah Magena v Wakenya Pamoja Sacco Society Ltd, Nrb ELRC Cause no. 510 of 2014 Mbaru J held as follows:

“The court has discretionary power to amend pleading at any stage before judgment for purposes of determining the real questions or issues which have been raised by the parties. That discretionary power is exercised so as to do justice to the case. However, the said discretion must be exercised judicially and with prudence and not whimsically. This was well articulated inInstitute for Social Accountability & Another v Parliament of Kenya & 3 others [2014] eKLR,where the court observed that:

“The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings.”

16. In Suleiman v Karasha ]1989] eKLRthe Court of Appeal held that:

“Under the Civil Procedure Rules, the parties can amend their pleading with the leave of the court at any time before judgment. Such amendment would clearly set the issues in dispute to enable the Court to arrive at a just decision. It does not matter if the hearing has been concluded but the court has to consider the application for amendment and give effect to it as it may deem just.”

17. What can be gleaned from the above case is that the court has a wide discretion to amend pleadings at any stage of the proceedings so to bring out the real issues in controversy between the parties and on such terms as to costs as may be just. I also agree with counsel for the 2nd Defendant that the principles of law with regard to amendment of pleadings, are underpinned by the sacred and sacrosanct principles of fairness, equity, equality, reasonableness, lawfulness, good conscience and morality.

18. In the instant case the Plaintiff seeks to enjoin the District Land Registrar as a “Necessary Party.” I agree with counsel for the Respondents that this is actually an additional witness as no reliefs are sought against him in the proposed Amended Plaint. The 2nd Plaintiff has however explained that the need to call the Land Registrar arose after the site visit when it became apparent that what had been hived off from his land during the expansion of the road was more than what he had initially pleaded, hence the need for the Land Registrar to produce the mutation forms to confirm the size of the 2nd plaintiff’s land. Although counsel for the 1st respondent argues that this case is not about the size of the plaintiff’s land, establishing the size of the plaintiffs’ land would assist the court in determining the extent of encroachment so as to assess the level of compensation, if any. To this extent therefore, the land Registrar is a necessary witness who will be subjected to cross-examination by the defendants.

19. The Civil Procedure Rules provide that amendments may be made any time before judgment. Additionally, Section 146 of the Evidence Act provides for recalling of witnesses which in essence amounts to re-opening of a case for purposes of adducing additional evidence. This means that as long as the parties have not put forth their entire case, they may be permitted to do so in order for the court to adjudicate on the real issues in controversy. In my view any prejudice that may be suffered by the defendants can be compensated by costs.

20. I have carefully considered the application, affidavits and submissions of both counsel. Even though I appreciate the defendant’s frustration considering how far this case has gone, I find merit in the application and I grant it and make the following orders:

a)   The Plaintiff is granted leave to amend his plaint in terms of the annexed draft Amended Plaint;

b)  The said Plaint shall be deemed filed and served upon payment of the requisite court fees.

c)   The Defendants shall file and serve their Amended Defences if need be, within 14 days.

d)  The Defendants shall have the costs of this application.

Dated, signed and delivered at Kericho this 4th day of July, 2019.

............................

J.M ONYANGO

JUDGE

In the presence of:

1. Mr. Migiro for the Plaintiff

2. Mr. Brian Langat for the 1st Defendant

3. Mr. Sang for the 2nd Defendant

4. Court assistant – Rotich