[2016] KEELC 1056 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NYERI

ELC NO. 237 OF 2013

FLOORING & INTERIORS LIMITED.............................PLAINTIFF/APPLICANT

-VERSUS-

PETER NDEGWA MURIITHI...........................DEFENDANT/1ST RESPONDENT

THE CHIEF LAND REGISTRAR............................................2ND RESPONDENT

THE DIRECTOR OF SURVEY................................................3RD RESPONDENT

RULING

1. On 15th June, 2015 the plaintiff filed a notice of motion of even date praying that it be granted leave to amend its plaint.

2. The application is premised on the grounds that addition of 2nd and 3rd respondents has necessitated the amendments sought; that allowing the amendment will enable the court to determine the real question in controversy between the parties. The plaintiff (applicant) contends that, in the circumstances of this case, it is fair and just that the orders sought be allowed.

3. The application is supported by the affidavit of Wahome Gitonga sworn on 15th June, 2015 in which the grounds on the face of the application are reiterated.

4. In opposition to the application, the 1st defendant Peter Ndegwa Mureithi, swore and filed the replying affidavit sworn on 9th September, 2015 in which he contends that the application lacks merit, is scandalous and an abuse of the process of the court. In this regard, the 1st respondent contends that there has been inordinate delay in bringing the application; that allowing the application will be prejudicial to it as it will be tantamount to allowing the plaintiff institute a new cause of action against him and that allowing the amendments will only serve to delay the hearing and determination of the case instituted against him.

5. The 1st and the 2nd respondent did not file any responses to the application.

6. When the application came up for hearing, counsel for the applicant, Mr. Muthoni told the court that he was relying on the grounds on the face of the application and the supporting affidavit.

7. Counsel for the 1st respondent, Mr. Nderi, contended that paragraph 10 of the amended plaint introduces a new cause of action even against persons who are not parties to the suit. Mr. Nderi further submitted that paragraph 10 totally changes the cause of action.

8. Mr. Nderi reiterated the contention that there has been inordinate delay in bringing the application (application brought two years after the suit filed). He opined that the applicant should consider filing a new suit.

Analysis and determination

9. It is trite law that courts will normally allow amendment of pleadings at any stage of the proceedings if it can be done without occasioning injustice or prejudice to the other party and if prejudice (if any) can be compensated by an award of costs.

10. The general power to amend pleadings is donated bySection 100 of the Civil Procedure Act and its handmaiden,Order 8 Rule 5 of the Civil Procedure Rules,which provides as follows:-

“5. (1) 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.”

11. The above provision of the law expressly provides that the court has discretionary power to amend pleadings atany stage before judgment for purposes of determining the real question or issue which has been raised byparties. That discretionary power is exercised so as to do justice to the case.

12. In Institute For Social Accountability & Another v Parliament of Kenya & 3 others [2014]eKLRit was observed:

“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.”

13. In the case of Eastern Bakery v. Castelino [1958] E.A. 461, Sir Kenneth O’Conner, President of the then Court of Appeal for Eastern Africa, at page 462 stated –

“It will be sufficient … to say that amendments topleadings sought before the hearing should be freelyallowed, if they can be made without injustice to theother side and that there is no injustice if the otherside can be compensated by costs…..The mainprinciple is that an amendment should not beallowed if it causes injustice to the other side.”(Emphasis supplied).

14. In applying the foregoing principles to the instant case, the plaintiff, Flooring & interiors Limited instituted this suit against Peter Ndegwa Muriithi (the 1st respondent) on 20th November, 2013. The plaint sought to be amended shows that the relief sought against the 1st defendant is an injunction to restrain him from carrying out or omitting to carry out a number of actions enumerated in that prayer.

15. The gist of the plaintiff’s claim is found in paragraph 4 of the plaint sought to be amended where the plaintiff contends that the 1st defendant without any colour of right invaded, encroached and trespassed into the parcel of land known as L.R 9395/103 (the suit property) and excised a portion thereof measuring approximately 0. 6 hectares.

16. On or about 19th January, 2015 the plaintiff obtained orders allowing him to join the Chief Land Registrar and the Director of Survey as interested parties to the suit.

17. On 15th June, 2015 the plaintiff brought the instant application praying that he be granted leave to amend is plaint as per the draft amended plaint filed alongside the application. One of the reasons provided for the intended amendment of the plaint is the joinder of the Chief Land Registrar and the Director of Survey to the suit. The plaintiff also contends that the amendment sought will enable the court to determine the real question in controversy between the parties. That contention is contested by the 1st defendant who thinks that the amendment is meant to strengthen or breath life to the suit. The 1st defendant also contends that the plaintiff seeks to introduce a new cause of action through the amendment.

18. I have reviewed the plaint filed in this suit and the intended amended plaint, with particular emphasis on paragraph 10 of the amended plaint, through which the plaintiff is accused of introducing a new cause of action.

19. Upon review of the initial plaint and the amended plaint, I found that the issues raised in paragraph 10 of the amended plaint are basically the same as the issues raised in paragraph 4 of the initial plaint. I say so because the two paragraphs merely bring into question the propriety of the process through which the 1st defendant obtained title to the portion of the property in question. In my view, all what the impugned paragraph of the amended plaint has done is to widen the scope of the reliefs sought against the respondents as opposed to introducing a new cause of action. The cause of action remains that identified in paragraph 4 of the initial plaint, which is, alleged invasion, encroachment and trespass into the suit property.

20. Although there has been a delay of about two years in bringing the application for amendment, cognisance of the fact that hearing has not commenced, I find and hold that allowing the amendment will not occasion prejudice to the 1st defendant which is incapable of being remedied by award of costs. I also hold the view that the amendment sought will assist the court to determine the real issues before it and arrive at a just conclusion.

21. The upshot of the foregoing is that the notice of motion dated 15th June, 2015 has merit and is allowed in terms of prayer 1.

22. The costs of the application shall be in cause.

Dated, signed and delivered at Nyeri this 22nd day of February, 2016.

L N WAITHAKA

JUDGE

In the presence of:

Mr. Muthoni for the applicant/plaintiff

N/A for the 1st respondent

N/A for the 2nd & 3rd respondents

Court assistant - Lydia