[2022] KEELC 15497 (KLR)

Kabaya v Ngure & 2 others (Environment & Land Case 1136 of 2013) [2022] KEELC 15497 (KLR) (24 November 2022) (Ruling)

Neutral citation: [2022] KEELC 15497 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 1136 of 2013

LC Komingoi, J

November 24, 2022

Between

Clement V. Gachuhi Kabaya

Applicant

and

David Kibuika Ngure

1st Respondent

Embakasi Ranching Company Limited

2nd Respondent

Land Registrar Nairobi

3rd Respondent

Ruling

1. This is the notice of motion dated March 30, 2022 brought under order 8 rule 3 and 5 of the Civil Procedure Rules, 2010, section 5 of the Judicature Act cap 8 and all other enabling provisions of law.

2. It seeks orders:-1. Spent.2. An order be and is hereby granting leave to the plaintiff/applicant to file an amended plaint after close of pleadings.3. An order be and is hereby issued holding the 1st defendant/respondent in contempt of the orders of this honourable court issued on December 9, 2014. 4.An order be and is hereby issued ordering the 1st defendant/respondent to deposit to this honourable court t original certificates of lease dated the March 27, 2019 and the original leases dated the March 4, 2019 with respect to title Nos Nairobi/Block 105/1274 and 1275. 5.Cost of this applicant.

3. The grounds are on the face of the application and are set out in paragraph 1 and to 13.

4. The application is support by the affidavit of Clement V Gachuhi Kabaya, the plaintiff/applicant herein sworn on the March 30, 2022.

5. The application is opposed. There is a replying affidavit sworn by the 1st defendant/respondent on the June 7, 2022.

6. The notice of motion was canvassed by oral submissions on the July 26, 2022.

7. It is the plaintiff’s/applicant’s case that there is need to amend the plaint. This has been necessitated by the filing of the 1st defendant’s further list of documents. That the 1st defendant/respondent now has original certificate of leases issued in the year 2020.

8. That this was against the consent orders dated November 9, 2014. That by submitting documents for verification by the 2nd defendant and the subsequent issuance of titles by the 3rd defendant, the 1st defendant was in contempt of the orders of December 9, 2014. He prays that the application be allowed.

9. The 1st defendant/respondent on the other hand, states that he was not in control of the process of issuance of title deeds. That the process was taken over by the government of Kenya and the 2nd defendant. It is his case that he did not disobey the orders of December 9, 2014. He prays that the application be disallowed.

10. I have considered the notice of motion, the affidavit in support and the annexures. I have also considered the affidavit in response, the oral submissions and the authorities cited. The issues for determination are:-(i)Whether the plaintiff/applicant ought to be allowed to amend his plaint.(ii)Is the 1st defendant/respondent in contempt of the court orders?(iii)Who should bear costs of this application?

11. On the November 15, 2021 the court granted leave to the 1st defendant/respondent to file additional documents with corresponding leave to the plaintiff to file additional documents if any.

12. When the 1st defendant filed the additional documents, the plaintiff realized that he (1st defendant) is in possession of certificates of lease issued in 2020. It is the plaintiff’s case that this necessitated this application.

13. Order 8 rule 3 of the Civil Procedure Rules provides that:-1)Subject to order 1, rules 9 and 10, order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.2)Where an application to the court for leave to make an amendment such as is mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just so to do.3)An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.4)An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which the party will sue is one in which at the date of filing of the plaint or counterclaim, he could have sued.5)An amendment may be allowed under subrule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.”rule 5 provides that:-“(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.(2)This rule shall not have effect in relation to a judgment or order.”

14. I note that the plaintiff has testified but has not closed his case.

15. Order 8 rule 5 of the Civil Procedure Rules allows for amendment of pleadings notwithstanding that the effect of such amendment is to add or substitute a new cause of action if the new cause arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment. I find that the plaintiff/applicant has made out a good case for the amendment of the plaint so that the issues herein can be resolved once and for all.

16. On the December 9, 2014 honourable J Onguto (as he then was) granted the following orders;-“1. That there is to be no transfer or registration of suit property Nairobi/Block105/1274 and Nairobi/Block 105/1275 either in favour of the plaintiff, the 1st defendant or the interested party or any other party for that matter pending the hearing and determination of this suit and or further order of the court.

2. That there shall be no further developments whatsoever pending the hearing and determination of the suit and or further orders by court.…….”It is against this background that the plaintiff/applicant seeks that the 1st defendant/respondent be found to be in contempt of the said orders.

17. The 1st defendant/respondent, went ahead and procured registration of the two titles in his favour. This was against order No 1 of the consent orders.

18. The 1st defendant/respondent justification is that the 3rd defendant took over the registration process and that he was not in control of the same. This may be true but the 1st defendant/respondent was under an obligation to inform the 2nd and 3rd defendants of the existence of the said orders.

19. Had the 2nd and 3rd defendants been made aware of the pendency of the suit and the existence of the orders they would have halted the process.

20. I am of the view that the 1st defendant/respondent may not have willfully and deliberately disobeyed the court orders but he neglected to bring it to the attention of the 2nd and 3rd defendants.

21. This will not go without consequences. I decline to find the 1st defendant/respondent guilty of disobeying the court orders of December 9, 2014. However, he is in possession of certificate of leases for the suit properties.

22. I agree with the plaintiff/applicant that they are now two sets of title documents in respect of the suit properties. I agree with the plaintiff/applicant’s submissions that there is a danger of the 1st defendant/respondent disposing the suit properties to the third parties to the detriment of the plaintiff/applicant.

23. The 1st defendant/respondent ought to deposit the certificates of lease issued to him in the year 2020 in court pending the hearing and determination of this suit.

24. In conclusion, I find merit in this application and I grant the orders sought namely:-(a)That the plaintiff/applicant is hereby granted leave to amend the plaint within twenty-one (21) days from the date of this ruling with corresponding leave to the defendants to file amended defence if any.(b)That an order is hereby issued compelling the 1st defendant/respondent to deposit with this honourable court the original certificates of lease dated March 27, 2019 and the original certificates of lease dated March 4, 2019 with respect to title numbers Nairobi/Block 105/1274 and Nairobi/Block 105/1275 within fourteen (14) days from the date of this ruling.(c)That the costs of this application be borne by the 1st defendant/respondent.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 24TH DAY OF NOVEMBER 2022. ……………………….L. KOMINGOIJUDGEIn the presence of:-No appearance for the Plaintiff/ApplicantMr. Chege Njoroge for the 1st Defendant and 1st Interested Party presentNo appearance for the 2nd and 3rd DefendantsMutisya – Court Assistant