[2017] KEHC 10069 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL & ADMIRALTY DIVISION

CIVIL CASE NO. 276 OF 2007

BEKYA FLORICULTURE LIMITED.........................PLAINTIFF

-VERSUS-

GIMALU ESTATES LIMITED..............................DEFENDANT

RULING

[1] The Notice of Motion dated 4 March 2016 was filed herein by the Plaintiff, Bekya Floriculture Limited, pursuant to Sections 1A, 1B and 3Aof the Civil Procedure Act, Order 8 Rule 3(1) and Order 51 Rule 1 of the Civil Procedure Rules for orders that:

[a] The Plaintiff/Applicant be granted leave to file a Further Amended Plaint;

[b] The Further Amended Plaint be filed within 14 days of the Order; and that the Defendant/Respondent, Gimalu Estates Limited,be at liberty to respond thereto within such time as the Court shall direct;

[c] The costs of the application be awarded to the Plaintiff/Applicant.

[2] The application was premised on the grounds that, in the course of the proceedings herein, Mutava, J. issued an Order on 12 October 2011 staying the transfer or any dealing by the Defendant with regard to the suit property, LR No. 167/9 (Original Number 167/3/15) South East of Limuru Township pending the hearing and determination of this suit; and that the Order was subsequently registered against the title and remains so registered to date. That in spite and in defiance of the said Court Order and the clear provisions of Section 52 of the Transfer of Property Act, the Plaintiff has since established that the Defendant had purported to sub-divide the property into various portions and had transferred some of them to various individuals and entities; and that it is the above developments that necessitated the filing of the present application.

[3] The application is supported by the affidavit of Yaacov Maimon, sworn on 4 March 2016 to which he annexed copies of the searches conducted by the Plaintiff; which confirm that the title has since been sub-divided and some of the portions transferred in defiance of the Court Order dated 12 October 2011. The Plaintiff also exhibited a copy of a letter dated 8 April 2015 from the National Land Commission confirming its refusal to approve the sub-division on the basis of the subsisting Court Order. It was further averred that in spite of the Court Order dated 12 October, 2011, the further Order of 9 December 2014 by Kamau, J. for the status quo to be maintained, and the letter aforementioned, the Defendant proceeded to sub-divide and transfer 8 of the sub-divisions to certain individuals and entities. Copies of the Transfers have been exhibited at pages 11 to 36 of the annexures to the Supporting Affidavit.

[4] It was further averred by Mr. Maimon that he was advised by the Ministry of Lands, Housing & Urban Development that whereas the suit property LR No. 167/9 is registered in File No. 13479 of Volume N43 Folio 393/17, the Defendant deliberately indicated in the Transfer/Conveyance documents of the purportedly sub-divided portions that the said suit property was in fact registered in File Number 13478of Volume N43 Folio 393/17, which also belongs to the Defendant and shares the same boundary with the suit property. That this high level of deception was clearly intended to facilitate the registration of the sub-divided portions on File No. 13478 as it was impossible to register them on File No. 13479 on which the Court Order was registered.

[5] It was further the averment of the Plaintiff that, despite the status quo order dated 9 December 2014, the Defendant had proceeded to dispose of 4 parcels of land from the illegal subdivision as follows:

LR No. 167/21 to Calculus Investment Co. Ltd on 5 March 2015 for Kshs. 25,000,000/=;

LR No. 167/22 to Charles Njenga Kariuki on 19 December 2014 for Kshs.17,500,000/=;

LR No. 167/24 to Tri-Vive Investments Limited on 13 February 2015 for Kshs. 100,000,000/=; and

LR No.167/25 to Tri-Vive Investments Ltd on 20 May 2015 for Kshs. 50,000,000/=.

[6] It was thus the contention of the Plaintiff that in view of the above developments, it has become necessary to seek the leave of the Court for the further amendment of the Plaint to bring the said developments to the Court's attention, hence the instant application. The Plaintiff annexed to its application a draft Further Amended Plaint for the Court's consideration and urged that the application be allowed.

[7] The Defendant opposed the application contending, in the Grounds of Objection filed herein on 28 April 2016, that the amendments sought are, from their very nature, not permissible in pleadings because:

[a] They constitute evidence that the Plaintiff shall have ample opportunity to adduce at the hearing of this suit;

[b] They constitute correction of grammatical errors that do not affect the Plaintiff's case, if any;

[c] They constitute contested matters of fact and conjecture that ought not to be part of pleadings;

[d] They refer to third parties and seek substantive orders against third parties without seeking an order to enjoin and accord the said third parties an opportunity to be heard by the Court before the application and the suit are heard and determined;

[e] The amendments sought are whimsical and do not make any jurisprudential sense or raise any matters capable of adjudication by the Court.

[8] According to the Defendant there is only one identifiable issue in this suit, namely: whether the applicant is entitled to an order for specific performance and/or damages pursuant to an Agreement for Sale of the suit property dated 6 February 2007; and that the issue does not require the elaborate amendments being sought by the Plaintiff. It was also contended that the ultimate effect of the proposed amendments will be to further delay the hearing and determination of this suit, granted that the pleadings had closed and the pre-trial requirements satisfied; and that in any event, this would be the 3rd amendment being sought by the Plaintiff, and is therefore one too many.

[9] The application was disposed of by way of written submissions. The Plaintiff's written submissions were filed herein on 4 July 2016, while the Defendant's written submissions were filed on 25 July 2016. Having considered the application in the light of the written submissions, which were highlighted on 11 August 2017, the only issue to consider is whether the application for the further amendment of the Plaint is warranted. The application was filed pursuant, inter alia, to Order 8 Rules 3(1) of the Civil Procedure Rules, which provides that:

"...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."

AndRule 5(1) in particular provides that:

"For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just."

[10]The rationale for amendment of pleadings need not be belaboured; it is so that the Court can then effectively and effectually determine the issues in controversy between the parties to the suit; and therefore should be freely allowed, especially if made before the commencement of the hearing. Thus, in Nyamodi Ochieng Nyamogo vs Kenya Posts and Telecommunication Corporation [2007] eKLR, it was held that:

"The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between the parties is conducted not on false hypothesis of the facts already claimed but rather on the basis of the true state of facts or relief or remedy which the parties really and finally intend to rely on or to claim."

[11] Accordingly, if the Court is satisfied that good cause has been shown for it, it ought to allow an amendment, notwithstanding previous amendments. In this case, the Plaintiff averred in the Supporting Affidavit that circumstances have changed since the last amendment and that it is therefore necessary to align the Plaint to accord with those changes. Documentary proof was provided to that effect, which has not been refuted. That, to my mind, is a justifiable cause and since the hearing is yet to commence, no prejudice will be suffered by the Defendant for which an award of costs would be insufficient as a recompense. It is notable that Counsel for the Plaintiff has intimated the readiness of the Plaintiff to pay costs of the application. Indeed, in Eastern Bakery vs. Castelino [1958] EA 461 it was held thus:

"...amendment to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side, and that there is no injustice if the other side can be compensated by costs.."

[12] Thus, the contention by the Respondent that the Plaint has already been amended twice and that the Court should not allow any further amendment does ring hollow; for as aptly stated by Apaloo, JAin Philip Chemwolo vs. Augustine Kubende[1985] KLR 492,the duty of the Court is to do justice to the parties and not to punish them for their mistakes or omissions. The Learned Judge expressed his viewpoint thus:

I think the broad equity approach to this matter, is that unless there is fraud or intention to overreach, there is no error ordefault that cannot be put right by payment of costs. The Court, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.”

[13] Accordingly, it is my finding that the Plaintiff's application dated 4 March 2016 does have merit. The same is hereby allowed and orders granted as prayed in the following terms:

[a]That leave be and is hereby granted to the Plaintiff to further amend the its Plaint in terms of the draft Further Amended Plaint annexed to the Supporting Affidavit herein.

[b] That the Further Amended Plaint be filed and served within 14 days from the date hereof in accordance with the provisions of Order 7 Rules 1 and 17 of the Civil Procedure Rules

[c] That the costs of the application be borne by the Plaintiff.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2017

OLGA SEWE

JUDGE