[2025] KEELC 2937 (KLR)

Kamau v Muigai & 5 others (Environment & Land Case 2 of 2020) [2025] KEELC 2937 (KLR) (26 March 2025) (Ruling)

Neutral citation: [2025] KEELC 2937 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitale

Environment & Land Case 2 of 2020

CK Nzili, J

March 26, 2025

Between

John Mwangi Kamau

Plaintiff

and

John Kamau Muigai

1st Defendant

Geoffrey Nyongesa Wafula

2nd Defendant

Josphat Makanga Ayeka

3rd Defendant

James Kariuki Gitonyo

4th Defendant

James Kariuki Njoroge

5th Defendant

Douglas Wanjala Wamamili-------

6th Defendant

Ruling

1. The plaintiff/applicant prays for leave to further amend the plaint in terms of the draft amended amended plaint attached thereto. The reasons are contained on the face of the application and in a supporting affidavit of John Kamau Mwangi sworn on 28/1/2025. It is deposed that during the pendency of this suit, titles to the suit parcel of land were issued to the defendants as seen in the official search certificates for LR Nos. Trans Nzoia/Sinyerere/1277 and 1274, attached as JKM ‘1’ and ‘2’, and therefore, there is a need to introduce new reliefs in the pleadings as per the draft intended pleading marked as JKM’3’.

2. The plaintiff moved to court by a plaint dated 22/1/2020. It contained pleadings that LR No.190 had been subdivided into parcel Nos. 1274 and 1277, and titles issued to the 1st and 4th defendants. The plaintiff seeks declaration that there was trespass onto 8. 9 acres of parcel No. Trans Nzoia/Sinyerere/145, nullification of the six subdivisions, permanent injunction and mesne profits.

3. The plaint was later amended on 29/1/2020 by adding the 5th, 6th and 7th defendants. The defendants entered an appearance on 4/2/2020 and filed a statement of defence dated 11/2/2020 in which they averred that title deeds for LR Nos. 1274 and 1217 had been issued to the 1st and 4th defendants. In paragraph 21, the defendants pleaded fraud and collusion in reversing the amendment of parcel No. 190 (No. 1269 – 1287), to its original status without a court order. The statement of defence was later amended on 7/12/2021 to correct the name of the 5th defendant. Annexures JKM’1’ and ‘2’ show that the registration and title deeds for LR Nos. 1274 and 1277 were issued on 27/1/2010. It is not correct, therefore as alleged in paragraphs 3 and 4 of the supporting affidavit of John Kamau Mwangi that the change occurred during the pendency of this suit.

4. The draft amended amended plaint in paragraph 14(a) & (b), and 15 relate to an alleged fraud that took place between 2003 - 2010. This was long before the suit was filed. If the amendment to the RIM creating LR Nos. 1269 - 1287 was reversed on 3/9/2010, then it means the plaintiff was aware of the alleged fraud.

5. The 1st and 4th defendants had pleaded as early as 17/2/2020 that they were in possession of the title deeds to LR Nos. 1274 and 1217. It cannot, therefore, be true that the plaintiff did not know about the said pleadings until 9/9/2022. The law on limitation is intended to protect defendants against unreasonable delay in bringing suits against them. In Gathoni -vs- KCC Ltd (1982) eKLR the Court of Appeal held that the statute expects the intending plaintiff to exercise reasonable diligence and to take reasonable steps in his interest under Sections 7 and 9(2) of the Limitation of Actions Act (Cap 22). Recovery of land has a limitation period of 12 years. Twelve years from 2003 expired in 2015. Cancellation of the title deeds is being sought after the 12 years expired in 2022.

6. An amendment will not be allowed if it impedes any accrued right or is likely to cause injury to the other side, or which is an abuse of the court process; or where the delay was deliberate, or where it does not embody of legally valid claim.

7. A court cannot entertain a cause of action which is time-barred, without leave being sought. See Pauline Wanjiru Thuo -vs- David Mutegi Njeru C.A No. 2887 of 1998. The effect of the plea or defence of limitation is to remove or bar the issuance of remedies irrespective of the merits of the particular case. The Limitation of Actions Act does not hold persons who, whether dilatorily or by ignorance, do not do what an informed citizenry would reasonably have done to protect his rights or interests.

8. Amendments should be freely allowed if they can be made without injustice to the other side, and where there would be no injustice if costs can compensate the other side. See Eastern Bakery -vs- Castelino [1958] EA 461. A party may also not be allowed to bring an amendment that will alter the cause of action or deny the opposite party an accrued defence or right. A party may not be allowed to revive an otherwise statutory barred claim.

9. In Joseph Ochieng & Others trading as Aquiline Agencies -vs- First American Bank of Chicago [1995] KECA 31 [KLR], the court observed that justice works both ways and the defendant is entitled to as much protection as the plaintiff.

10. In this suit, there has been deliberate and negligent conduct of litigation on the part of the plaintiff. A party coming to court must come with clean hands. The affidavit in support is misleading.

11. The upshot is that I find no merits in granting leave to further amend the amended plaint. The application is dismissed with costs.

RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 26TH DAY OF MARCH 2025. In the presence of:Court Assistant - A. EbenyoKiarie for the plaintiff presentTeti for the respondent absentHON. C.K. NZILIJUDGE, ELC KITALE.