[2024] KEELC 6337 (KLR)

Goren & another v Ngetich (Environment & Land Case E001 of 2023) [2024] KEELC 6337 (KLR) (23 September 2024) (Ruling)

Neutral citation: [2024] KEELC 6337 (KLR)

Republic of Kenya

In the Environment and Land Court at Kapsabet

Environment & Land Case E001 of 2023

MN Mwanyale, J

September 23, 2024

Between

John Kipyegon Goren

1st Plaintiff

Apton Goren

2nd Plaintiff

and

Alex Kiprotich Ngetich

Defendant

Ruling

1. Vide their application dated 10/6/2024 the Applicants John Kibiego Goren and Apton Goren seek the following orders; -i.The Honourable Court be pleased to Grant leave to the Plaintiffs/Applicants to amend their plaint in the nature of the draft Amended Plaint.ii.The Amended Plaint be deemed as duly filed upon payment of the requisite Court fees.

2. The application is based on grounds that the amendment will bring out the real issues in controversy for determination by the Honourable Court.

3. That no prejudice will be occasioned to the Respondents if leave is granted since they will amend their defence

4. The application is supported by the affidavit of Apton Goren who reiterates the grounds in support of the application and who has annexed the draft amended plaint, and deposes that the amendment will not change the nature of the cause, or introduce a new cause of change but would assist the Court to determine all the issues in controversy.

5. The Respondent opposes the application and has filed grounds of opposition dated 5th July 2024.

6. The grounds of opposition are interalia;i.That a claim for adverse possession is provided for adverse possession is provided for in Section 38 of the Limitation of Actions Act.ii.That Order 37 Rule 7 of the Civil Procedure Rules provides in plain clear and mandatory terms that;a.An application under Section 38 of the Limitation of Actions Act shall be made by Originating Summons.b.The summons shall be supported by an affidavit to which a certified extract of the title to the land in question has been annexed.iii.That the Plaintiffs commenced the proceedings herein by way of plaint.iv.No Originating Summons have ever been filed by the Plaintiff’s supported by an affidavit as required.

7. Thus, the Plaintiff cannot claim adverse possession in a suit commenced by way of a plaint seeking for recovery of land.

8. On 1/7/2024, the Courts attention was drawn to the existence of the application and directions were issued for the application to be served and to proceed by way of written submissions, and timelines of filing the submissions were issued and ruling reserved for today 23/9/2024.

Applicants Submission: - 9. The Applicant has framed and submitted on two issues;i.Whether they should be granted leave to amend their plaintii.Who bears the costs of the application?

10. On issue 1, the Applicants submits that under Order 8 Rule 3 (i) of the Civil Procedure Rules provides for amendment at ay time of the proceeding’s reliance is also placed on Order 8 Rule 50 of the Civil Procedure Rule. The Applicant further places reliance on the decision in the cases of Joseph Kipkirui Mutai vs Richard Kibet & Another, Civil Appeal No. 17/ 2014, as well as Beatrice Gikunda vs CFC Assurance Limited (2020) eKLR. which decisions buttress the point that leave to amend should be ordinary be granted when the amendments seek the determine the real questions in controversy.

11. The Applicants submits while placing reliance on the decision in the case of Patrick Ndegwa Munya vs Benjamin Mwangi (2020) eKLR, which decision quotes the decision in Gulam Mirriam Noordin vs Julius Charo Karisa as well as Chevron (K) Ltd vs Harrison Charo was Shutu, and submits a charge in the jurisprudence of commencing a claim of adverse possession of counterclaim as opposed to an Originating Summons.

12. The Defendant Respondents while placing reliance on its grounds of opposition has framed two issues for determination to wit, whether leave should be granted to the Plaintiffs to amend their plaint, and who should bear the costs of the application.

13. On issue number 1, the Respondents placing reliance on the decision in Muhiddin Mohamed Muhiddin vs Jackson Mutahma, 2014 eKLR submits that the procedure for adverse possession is through an Originating Summons and cannot be introduced by way of a plaint.

14. The Respondent equally submits placing reliance on the decision in Samuel Miki Waweru vs Jane Njeru Richu 2007 eKLR that as the Plaintiff had pleaded purchase, he cannot seek an adverse possession, hence leave ought not to be granted.

15. Reliance was further placed on the decision in Ndatho vs Itumo and Abubakar Herezo Bwana vs Twalib Mohamed Said & 2 others to support their position.

Analysis and Determination: - 16. After a careful analysis of the application, the rival affidavits and the submissions and taking into consideration the application law the Court frames the following as issues for determination.i.Whether or not the objections raised by the Respondents are tenableii.Whether the application is meritediii.Who bears the costs of the application?

17. The gravamen of the opposition to the application is that a claim of adverse possession cannot be introduced in a plaint as it is proposed by the Plaintiff/Applicants in the draft Amended Plaint. As set out above the Respondent has cited about 3 Court of Appeal decisions al supporting this position.

18. In response the Applicant has cited the decision Patrick Negwa Munya vs Benjamin Mwangi (2020) which decision cited the Gulam Noordin decision as well as the Chevron (k) Ltd decisions.

19. I have perused the decisions cited by the Applicant and the Respondents. The decisions cited by the Applicant are the later decisions and present the general shift in jurisprudence since the decision cited by the Respondent were made.

20. In Chervon (k) Ltd Harrison Charo wa Shutu (2016) eKLR, the Court of Appeal observed as follows;“The Courts have since this decision, held that a claim of adverse possession can be brought by a plaint (see Mariba vs Mariba). Civil Appeal No. 188/2002, counterclaim or defence as was the case here, see Wabala vs Okumu.”

21. In Gulam Mriam Noordin vs Julius Karisa Charo, where the claim was raised in the defence, the Court in rejecting the objection to the procedure, stated as follows.“where a party like the Respondent in this appeal is sued for vacant possession he can raise a defence of statute of limitation by filing a defence and counterclaim. it is only when the party applies to be registered as the proprietor of land by adverse possession that order 37 Rule 7 requires such a claim to be brought by Originating Summons. It has also been held that the procedure of Originating Summons is not suitable for resolving complex and contentious so questions of fact and law. Be that as it may, and to answer the question, whether it was erroneous to sanction a claim of adverse possession only pleaded in the defence, we refer to the case of Wabala vs Okumu (1997) LLR 609 (AK) which like this appeal the claim for adverse possession was in the form of a defence in an action for eviction.The Court of appeal in upholding the claim did not faults the procedure. Similarly, in Bayete Co, Ltd vs Kosgey (1998) were the Plaint made no specific plea of adverse possession, the plea was nonetheless granted.”

22. It follows thus that the proposed amendment is allowable under the new dispensation and the Respondents objection are not merited.

23. On issue number 2, the application seeks to introduce a prayer for adverse possession. Since the Respondents will have time to respond to it, I find that the same is the real issue in controversy and that the application is thus merited and it is hereby allowed with costs in the cause.

RULING, DELIVERED AND DATED AT KAPSABET THIS 23RD DAY OF SEPTEMBER, 2024. HON. M. N. MWANYALE,JUDGEIn the presence of;1. Ms. Oduor for the Plaintiff/Applicant2. Mr. Mokua for the Respondents.