[2018] KEHC 4528 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA IN BUSIA

ENVIRONMENT AND LAND COURT

ELCNO. 32 OF 2012

EDWARD OKELLO...........................................................PLAINTIFF

VERSUS

WAWIRE WANDERA....................................................DEFENDANT

R U L I N G

1. What is for determination before me is an application filed as a motion on notice on 20/2/2018. It was filed by the Applicant – WAWIRE WANDERA – who is the Defendant in the suit herein. It is against the Respondent– EDWARD OKELLO –who is the Plaintiff. The application is brought under Order 8 Rules 3(1), (2), (5), (4), 5(1), Order 51 Rules 1, 4, 6, 10(1), (2) of Civil Procedure Rules together with all other enabling provisions of law. The Applicant wants the following orders:

1. That this honourable court do grant the Defendant/Applicant leave to amend his defend and include a counter-claim.

2. That costs of the application be provided for.

2. According to the Applicant, some triable issues were left out at the time of filing defence. He seeks to include such issues and he points out that the Respondent will suffer no prejudice as he would be afforded opportunity to respond.

3. The Respondent opposed the application vide a replying affidavit filed on 2/3/2018. The Respondent pointed out that the application is the third one of identical nature filed by the Applicant. The previous similar applications were dated 5/4/2017 and 29/11/2017 respectively. The Respondent alleged that the Applicant wants to delay the suit. To him, there are no new issues for determination. He alleged that the draft defence and counter-claim was not attached to the application.

4. The position of the Respondent is that the application is an abuse of the court process, is calculated to prejudice or embarrass him, and is meant to delay this suit so that another suit – ELC No. 75/2017 – filed by the Applicant can be determined ahead of this one.

5. The application was canvassed by way of written submissions. The Applicant’s submissions were filed on 21/5/2018. The submissions reiterated what was stated in the grounds and supporting affidavit that came with the application. The Applicant also availed a ruling in the case of TABITHA WANDIA Vs FRANCIS MWANGI: ELCA No. 36 of 2015, NYERI, where amendment was allowed to include some documents. In that ruling too, there was an exposition on the law relating to amendments.

6. The submissions of the Respondent were filed on 23/3/2018. Much was reiterated in the submissions that is also in the replying affidavit. In addition, the Applicant was accused of causing adjournments and the application was said to have come belatedly in order to cause further delay.

7. I have considered the suit as filed, the application herein, the response made, and rival submissions. The authority availed by the Applicant articulates the applicable law well. And the law is that the court has wide discretionary power to allow amendments. And that can be done at any stage of the proceedings.

8. On my part, I may wish to add that the law on amendments is mainly well settled. The court has a wide discretion to allow amendments in order to determine the real issues in dispute and do substantial justice. The amendment can be sought at any stage of proceedings. The only qualification to this is that that should be done within a reasonable time and it should be possible to compensate the other side with costs.

9. The circumstances under which amendments can be sought are wide and varied and each case therefore should be handled in light of its own facts. But amendments cannot be allowed to change the entire character of the suit. Care therefore should be taken that amendments should flow from the existing or original suit. And in all cases, amendments should be sought in good faith and the court will not allow pleadings if it is shown that the aim is to abuse the court process or if such amendment is immaterial, useless or merely technical.

10. It is important to point out too that amendments should not work injustice to the other side. But in such a situation, an injury that can be compensated by way of costs is not treated as an injustice. The law enjoins also that the courts should allow amendments to avoid multiplicity of suits and all amendments that avoid such multiplicity should be allowed.

11. In the application at hand, the need to avoid multiplicity of suits is an overriding consideration. Though the Respondent alleged that the draft defence and counter-claim were not annexed to the application, what we have in the court records is an application that came with such defence and counter-claim. And a look at the counter-claim shows that the Applicant is claiming the disputed parts of the claimed land by way of adverse possession. If the Applicant is not allowed to urge that claim now, he may bring it later as a separate claim. And that would amount to multiplicity of suits.

12. The Respondent alleged many things against the Defendant. I am constrained to observe that none of the allegations was demonstrated well. The court considers that whatever inconvenience the Respondent may suffer, he can always be compensated by way of costs. The upshot is that this application should be allowed and I hereby allow it. But the Applicant should pay the costs of this application and also the costs of the other similar applications if and where the Respondent had responded to them.

Dated, signed and delivered at Busia this 26th day of July, 2018.

A. K. KANIARU

JUDGE

In the Presence of:

Plaintiff: ...................................................................

Defendant: ...............................................................

Counsel of Plaintiff..................................................

Counsel of Defendant...............................................