[2024] KEELC 5526 (KLR)

Agesa & 32 others v Exposure Interlink Agencies Ltd & 9 others (Environment & Land Case 66 of 2019) [2024] KEELC 5526 (KLR) (25 July 2024) (Ruling)

Neutral citation: [2024] KEELC 5526 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Case 66 of 2019

A Nyukuri, J

July 25, 2024

Between

John Alichula Agesa

1st Plaintiff

Davis Onyango Opiyo

2nd Plaintiff

Nick Okoth Oguta

3rd Plaintiff

Maurice Kathioki Musakue

4th Plaintiff

Domitilah Kanini Ngui

5th Plaintiff

Erick Obegi Manduku

6th Plaintiff

James Kabi Maina

7th Plaintiff

Kenneth Mutugi

8th Plaintiff

Josephine Mutongoi Martin

9th Plaintiff

Hellen Mukami Mwangi

10th Plaintiff

Jonathan Kiilu Mwaluko

11th Plaintiff

Sarah Njeri Wanjiku

12th Plaintiff

Sally Jepkemboi Kimaiyo

13th Plaintiff

Betty Muthoni Nyaga

14th Plaintiff

Joseph Kinyua Waigwa

15th Plaintiff

Charity Cherotich Kimaiyo

16th Plaintiff

Oscar Kiruga Maithia

17th Plaintiff

Patrick Muiruri Kariuki

18th Plaintiff

Alice Wahinya Mukuria

19th Plaintiff

Stephen Kieti Kyule

20th Plaintiff

Jones Kyule Munyao

21st Plaintiff

Julius Kitivo

22nd Plaintiff

Judith Akinyi Omondi

23rd Plaintiff

Daniel Ofero Oyugi

24th Plaintiff

Peter Mutua Kimatu

25th Plaintiff

Michael Chemoiywo Kibarar

26th Plaintiff

George Mugambi Gitonga

27th Plaintiff

Samson Makori

28th Plaintiff

Claire Terigin

29th Plaintiff

John Njihia

30th Plaintiff

Consolata Mutindi Nzambu

31st Plaintiff

Richard Gacharia Gichuru

32nd Plaintiff

George Gitonga Ndiritu

33rd Plaintiff

and

Exposure Interlink Agencies Ltd

1st Defendant

Hellen Wanza Kioko

2nd Defendant

Kasina Mwololo

3rd Defendant

Francis Matheka

4th Defendant

Alex Mutuku Mbelenzi

5th Defendant

Mark Mutua Mulei

6th Defendant

Samwel Kalovoto Seke

7th Defendant

Kitumbi Ventures Limited

8th Defendant

The Land Registrar Machakos

9th Defendant

The Attorney General

10th Defendant

Ruling

1. On 31st January 2024 when this matter came up for defence hearing, the 7th defendant, Mr. Samwel Kalovoto, took the witness stand, took oath, and in defence, proceeded to seek the leave of court to allow him to withdraw and or recant his statement of defence and witness statement. He stated that it is his advocate who filed the same as he was not privy to the contents thereof.

2. The application was opposed by the plaintiff on the basis that the plaintiffs had closed their case and evidence given took into account the 7th defendant’s witness’ statement and defence and that the 7th defendant’s evidence is pertinent to assisting the court arrive at a just decision as he was the original proprietor of the suit property. The counsel had no reservations on the withdrawal of the witness statement, but of the statement of defence. It was also counsel’s opinion that the 7th defendant should testify to guide the court on his role in the transaction.

3. Similarly, counsel for the 1st defendant was not opposed to the withdrawal of the defence but opined that the witness’s evidence was pertinent in assisting the court reach a just decision. Counsel for the 8th defendant held a similar view and added that since the plaintiff had already closed their case, the matter would be impacted if the 7th defendant changed their statement at this point and also that the defence was jointly filed with the 7th defendant being a key player in the matter.

4. In a rejoinder, the 7th defendant stated that he wanted to recant his pleadings and witness statement so that he can later obtain leave to file a fresh defence and witness statement.

5. Therefore this ruling is in respect to the 7th defendant’s prayer for recanting defence and witness statement.

6. The statement of defence which the applicant wished to recant is dated 1st August 2019 and filed on 6th August 2019 by Messrs B. M. Mungata Advocates, counsel previously on record for the applicant. The witness statement that the applicant wishes to withdraw is dated 12th April 2021 and filed on 10th May 2021.

Analysis and determination 7. The court has carefully considered the matter and the issue is whether the court should allow the 7th defendant “recant” his defence and witness statement.

8. The Black’s Law Dictionary defines “recant” as follows;To withdraw or renounce (prior statements or testimony) formally or publicly

9. Therefore, recanting is renouncing one’s testimony in a matter. Can a party recant their defence? The 7th Defendant did not cite any legal provisions underpinning their prayer, neither did the respondents. A defence is a pleading. Does the law allow “recanting” of pleadings? I do not think so.

10. Order 8 of the Civil Procedure Rules allows amendment of pleadings. The Black’s Law Dictionary 11th Edition defines “amend” as “to correct, or make, usually small changes to something written or spoken); to rectify or make right. To change the wording of…. to formally alter (a statute, constitution, motion etc) by striking out, inserting or substituting words.

11. Therefore, to amend is to rectify a document, and a defence may be amended.

12. As for withdrawal of pleadings, under Order 25, it is the plaintiff who can withdraw their suit. This applies to a counterclaim. Can a defendant who has filed their defence without a counterclaim, like in this case, withdraw their defence in the manner suggested by the 7th defendant? It is apparent that there is no legal basis allowing withdrawal of a defence. However, the defendant can amend their defence if they so wish as discussed above.

13. For the above reasons, I decline to allow the application to recant the defence.

14. On recanting his witness statement, it is my view that the defence of the 7th defendant is his business and he can choose the manner in which he will present his testimony. However, having taken oath and stated in evidence that he is recanting his testimony contained in his witness statement, that too is a testimony, which is subject to cross examination and therefore, the 7th defendant is allowed to recant his witness statement, and since he has done so on oath in support of his defence, he is subject to cross examination. In the premises, the 7th defendant’s prayer to recant his witness statement is hereby allowed.

15. It is so ordered.

DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 25THDAY OF JULY, 2024 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the presence of;Mr. Andati for plaintiffsMr. Migele holding brief for Mr. Osero for 4th defendantMs. Mutua holding brief for Mr. Mutava for 7th & 8th defendantsNo appearance for other defendantsCourt assistant – Josephine