[2019] KEELC 4393 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAROK

ELC CAUSE NO. 489 OF 2017

FORMERLY KISII ELC NO. 495 OF 2015

JOSEPH OLOINYEYIE NAITIPA...................................PLAINTIFF

-VERSUS-

JEREMIAH SAOLI MBEESH.......................................DEFENDANT

RULING

By a Notice of Motion dated 2nd March, 2018 the Plaintiff/Applicant on an Application brought under Order 1 Rule 3,7,10 Order 51 Rule 1, 3 of the Civil Procedure Rules 2010 sought the court to set aside proceedings of 20th September, 2017 and add one Joshua Kinyamai Ole Shankil as the 2nd Defendant and to give directions on the amendments of pleadings.

The Application was based on the grounds that at the close of the proceedings and during the hearing of 20th September, 2017 it emerged that the Defendant had transferred the suit land to one Joshua Kinyamai Ole Shankil on 11th April, 2017 which was not disclosed to the court during the hearing and that the transfer of the land during the pendency of the suit was intended to defeat the cause of justice and that it shall serve the interest of justice to have the new owner included as a Defendant.

The Application was further supported by the Affidavit of Oloinyeyie Naitipa.

The Defendant/Respondent opposed the Application and filed a Replying Affidavit and he contended that the Applicant was bound by his pleadings and that the instant Application was brought to court late and that the amendments sought can’t be made at this stage of the proceedings and that if the orders sought are granted then the same shall amount to the reopening of the case and that the orders sought shall cause the Respondent grave damage and prejudice.

I have considered the Application before me and submissions filed by Advocates for the Applicant and the Respondent. It is not disputed that proceedings in the matter commenced and both parties gave evidence. However, pending delivery of Judgement the Applicant filed the instant Application whose crux is that the Defendant while the suit was pending before the court transferred the suit land to a third party which he neither disclosed in is pleadings or during the hearing of the matter.

I have read through the pleadings and the testimony of the Plaintiff during his examination in chief and I find that he did not make that disclosure. So the issue for the court to determine is, whether the omissions by the Defendant was fatal to the Plaintiff’s case to warrant the grant of the orders sought in the instant Application.

The Respondent in his opposition to the Application deponed that the parties are bound by their pleadings and the court at this stage cannot grant the orders sought.

This is a court of equity and in the Spirit of Article 159 of the Constitution is bound to observe Justice over procedural technicalities in the instant Application.

I find that the Defendant’s failure to disclose that he transferred the suit to a third party makes him guilty of non-disclosure of material evidence and that being so he cannot benefit from a process as that he deliberately wanted to benefit from and cause injustice to another party.

In view of the above, I find that the Plaintiff’s Application dated 2nd March, 2018 is merited and I will allow the Application and grant orders in the following terms:-

a) That the proceedings of the court dated 20th September, 2017 be and are hereby set aside.

b) That Joshua Kinyamoi Ole Shankil be enjoined in the proceedings as the 2nd Defendant.

c) That Plaintiff/Applicant do amend his Originating Summons within 21 days of this Ruling and serve the same upon the Defendants.

d) The matter be mentioned in court on 20th March, 2019.

e) Each party to bear its costs to the application.

DATED, SIGNED and DELIVERED in open court at NAROK on this 28th day of FEBRUARY, 2019

Mohammed Noor Kullow

Judge

28/2/19

In the presence of:

CA: Kimiriny

Mr Maroko holding brief for Bogi for the Plaintiff/Applicant

Mr Ogutu for the Defendant/Respondent

Mohammed Noor Kullow

Judge

28/2/19