[2017] KEHC 722 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

CIVIL SUIT NO. 52 OF 2015

BRIDGE HOTEL LIMITED...........................................PLAINTIFF

VERSUS

BISHOP WILFRED LAI

JESUS CELEBRATION CENTRE.............................DEFENDANTS

RULING

1. This is the application dated 1st February 2017. It is brought by way of Chamber Summons under Order 1 Rule 10 (2), Order 23 Rule 4 (1) and 12 of the Civil Procedure Rules 2010, Section 3A of the Civil Procedure Act and all other and further enabling provisions of the Law.

2. It seeks orders;

a. That the Plaintiff be granted leave to amend its plaint as per the annexed copy of the plaint.

b. That the amended plaint be deemed as duly filed and served upon payment of the requisite fees.

c. That costs of the application ben in the cause.

3. The grounds relied upon are;

i. That the court delivered its ruling and stated we wrongly sued the earlier Defendants who did not have capacity “to be sued.”

ii. That for proper determination of this suit we have brought in the legal personalities behind the cause of action and it is only just and proper that the pleadings be amended accordingly.

4. The application is supported by the affidavit of Lawrence Karume, director of the Plaintiff sworn on the 1/2/2017.

5. The application is opposed. There are grounds of opposition filed by the 1st Defendant dated 27/2/2017 and filed in court on the 1/3/2017.

6. I have considered the Chamber Summons and the affidavit in support. I have considered the grounds of opposition and the authorities cited. I have also considered the oral submissions of both counsels. The issue for determination is whether this application is merited.

7. It is the Plaintiff/Applicants case that its application dated 23/3/2015 was struck out for the 2nd Defendant/Respondent lacked capacity to be sued.

That it seeks amendment to bring the proper parties. It prays that this application be allowed.

8. The Defendant/Respondents case is that there is no suit pending before court to enable a party to be joined. Further that there is nothing left to be determined in this matter.

That the issues raised are not constitutional. That the application offends Order 31 Rule (2) of the Civil Procedure Rules and the application is an abuse of the court process.

They have relied on the following cases;

a) Andrew Ingolo Abwanza –versus- Board of Trustees of Pentecostal Assemblies of God And 3 Others (2009) eKLR

b) Bishop Rev. Silas Yego And 3 Others –versus- David Mulei Mbuvi And 5 Others (2005) eKLR

Which have I have had occasion to read.

9. I have gone through the ruling by Honourable Justice A. Omollo dated 16/11/2016. Paragraph 17 reads;

“……. Until the suit against the 2nd Respondent is properly commenced, the orders sought in the Notice of Motion dated 23/3/2015, herein fails. In conclusion, the Notice of Motion and the suit against the 2nd Respondent be and is hereby struck out with no order as to costs. The application as against the 1st Defendant is dismissed with costs for want of merit.”

10. The draft amended plaint annexed to the application states that the Defendants are; Wilfred Mutiso Lai, Justus Kimeu (being sued in their capacity as officials/trustees of Jesus Celebration Centre).

I believe this is the Plaintiff’s attempt at suing the “right parties” so to speak. I agree with counsel for the Defendant/Respondents that there is no suit pending for a party to be joined. My understanding of the ruling by Honourable Justice A. Omollo is that the Plaintiff ought to file a fresh suit.

11. Even if there was a suit pending the amendment offends Order 31 Rule (2) of the Civil Procedure Rules.

12. I find that this this application is an abuse of the court process.

I find that it is not merited and the same is dismissed with costs to the Defendants.

It is so ordered.

Dated, signed and delivered atMombasa on the1stday ofNovember 2017.

L. KOMINGOI

JUDGE

1/11/2017