[2023] KEELC 19325 (KLR)

Kandara Residents Association & 4 others v Del Monte (K) Ltd & 4 others (Environment & Land Case 53 of 2018) [2023] KEELC 19325 (KLR) (18 July 2023) (Ruling)

Neutral citation: [2023] KEELC 19325 (KLR)

Republic of Kenya

In the Environment and Land Court at Muranga

Environment & Land Case 53 of 2018

LN Gacheru, J

July 18, 2023

Between

Kandara Residents Association

1st Plaintiff

Karira Kimara

2nd Plaintiff

George Njigu

3rd Plaintiff

Judy Wairimu Kimemia

4th Plaintiff

Michael Njoroge

5th Plaintiff

and

Del Monte (K) Ltd

1st Defendant

National Land Commission

2nd Defendant

County Government of Kiambu

3rd Defendant

County Government of Murang’a

4th Defendant

The Attorney General

5th Defendant

Ruling

1. Vide an application dated 16th March 2023, the Plaintiffs/Applicants herein sought for the following orders:a.That the Honourable Court do grant leave to the Applicants to amend their Plaint;b.That the draft Plaint annexed herewith be deemed as duly filed; andc.That costs of this application be in the cause.

2. The application is premised on the grounds stated therein and on the Supporting Affidavit of Michael Njoroge. He averred that there are new developments touching on the subject matter of the suit, namely land parcels L.R. No. 12157, 12158 and 13289 (hereinafter the suit properties) since the filing of the suit in June 2018, and it would only be prudent for the Court to grant the Applicants leave to amend their Plaint. He further averred that the application was made without inordinate delay considering that the Society comprises 4,000 members and mobilization of the members was an uphill task.The Applicants averred that there had also been changes relating to the office holders of the Society and that the Society’s current chairman - Karira Kimara, had been authorised to sign documents on behalf of the Society, as well as sue on his own behalf. Further, the Applicants averred that through a Court Order issued in Milimani Civil Suit E275 of 2021, the Court restrained Karira Kimara from holding office pending further orders.

3. The application was opposed by the 1st Respondent through Replying Affidavit of Harry Odondi, its Legal Officer dated 24th March 2023, wherein he averred that the application is an abuse of the Court process and an attempt by the Applicants to disorganize the Court through multiple amendments of pleadings. He further averred that the Applicants had failed to produce the Court Order, which they had made reference to in the application. He further averred that the application was delayed, coming 5 years after the suit was filed, and that the Court had previously denied parties applications in order to resolve the suit on merit and expeditiously.The 1st Respondent also averred that the if the application is allowed, 1st Applicant’s regular leadership contests could possibly lead to further amendments to the suit. He further averred that the 1st Applicant was struck out as a Plaintiff in the suit and thus their joinder would be contradictory to Court orders. Lastly, it was averred that there were errors in the amended Plaint regarding the spelling of the parties names in particular – Kandara Residence Association to Kandara Residents Associations and Michael Njoro to Michael Njoroge. The 1st Respondent averred that the amendments were not carried out in accordance with the Civil Procedure Rules, bringing further confusion to the matter.

4. To conclude, the 1st Respondent averred that the draft amended Plaint, constituted a radically different case from the original case, which would greatly prejudice the 1st Respondent. He urged the Court to dismiss the Application.The 5th Applicant – Michael Njoroge filed a Supplementary Affidavit dated 9th March 2023, in response to the 1st Respondent Replying Affidavit. It was his contention that the application was made in good faith and in the interest of justice, and that there was only one previous application herein to amend the Plaint, which was stayed on 30th January 2023. The 5th Applicant further contended that the Applicants had attached the Court Order that they have made reference to in their Affidavit and that they were available for the Respondents to review. He further averred that the Applicants are interested in prosecuting their case as evidenced by their prompt filing of their bundle of documents and witness statements.

5. The depondent contended that the addition of the Karira Kimara to the suit was in his personal capacity, and not as the Chairman of the 1st Plaintiff/Applicant. The deponent further averred that Kandara Residents Association, would no longer be a Plaintiff in the suit, should the amendments be allowed. Lastly, he averred that the name of the 5th Applicant was Michael Njoroge and not Michael Njoro.On the issue of prior applications to amend the suit, the 5th Applicant averred that that application was withdrawn as it was overtaken by events following the judgment of this Court in ELC Petition No. 3 of 2019.

6. On the issue of the proposed amendments, the 5th Applicant averred that the cause of action pertains to land occupied by the 1st Respondent, as a leaseholder from the Government of Kenya and that under Article 162 of the Constitution, this Court is clothed with jurisdiction to deal with matters pertaining to land. He further averred that the alleged 7 new parcels of land included in the suit were not new properties, but the result of an amalgamation of land resulting in the new reference numbers.Lastly, the 5th Applicant averred that the amendments were not meant to derail the Court, and if the Court were to grant the orders sought, the only pre-requisite to comply with would be the Pre-trial conference, before the matter proceeds for hearing.

7. On 2nd June 2023, the 4th Respondent filed grounds of opposition; -1. That the application is vexatious, frivolous, and an abuse of the Court process;2. That the prayers sought are time barred; and3. That the application ought to be dismissed with costs.The Application was canvassed by way of submissions.

8. The Applicants through the Law Firm of Okatch & Partners Advocates filed their written submissions dated 9th May 2023, and submitted that the purpose of an amendment is to allow litigants to conduct litigation on true facts, which the parties can rely on. They relied on Order 8 Rule 3 and Rule 5 of the Civil Procedure Rules, which provides, -(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.(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.”

9. The Applicants further submitted that for an application of amendment to succeed, three elements must be demonstrated. They relied on the case of Institute for Social Accountability & Another v. Parliament of Kenya & 3 Others (2014) eKLR, wherein the elements were listed as follows:1. The application has been made without undue delay;2. No new or inconsistent cause of action has been introduced;3. Can the amendment be allowed without injustice to the other party?

10. Lastly, the Applicants submitted that Courts will normally allow parties to make amendments in order to determine the real questions in controversy. Reliance was placed on the case of Institute for Social Accountability (supra) where the Court held as follows: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 planned to 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 effectively in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings…the Court will normally allow parties to make such amendments as may be necessary for determining the real questions in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, no new inconsistent because of action is introduced, and no vested interest or accrued legal right is affected and that the amendment can be allowed without an injustice to the other side.”

11. On the issue of whether the application was made without undue delay, the Applicants submitted that the application was made in a timely manner considering the orders that necessitated the amendments were issued on 8th December 2022. On the second issue of whether any inconsistent issues were introduced, the Applicants submitted that the new parcels of land alleged to have been introduced were as result of an amalgamation to form Land Reference No. 12158, which was still listed in the original Plaint. The Applicants further submitted that the issues raised in the draft Amended Plaint had the same cause of action as the original suit. They relied on the case of Eunice Chepkorir Soi v. Bomet Water Co. Ltd (2017) eKLR, where it was held that amendments should ordinarily not be disallowed on the grounds that it introduces a new case.On the final issue of whether the amendment would prejudice other parties, the Applicants submitted that the Respondents herein had failed to demonstrate any injury or injustice that would be occasioned on them if the amendments are allowed. They also relied on the case of Eunice Chepkorir Soi (supra),where the Court held as follows:All the authorities lay down precisely the same doctrine that amendments should be refused only where the other party cannot be placed in the same position as if the pleadings had been originally correct, but the amendment would cause him an injury which could not be compensated by costs. The Court must aim at seeing that a multiplicity of suits is avoided, the real matters in controversy between the parties are really brought out, the other party is not prejudiced, the character of the suit or defence is not altered and the object of the amendment is not to abuse the process of the Court or unnecessarily delay justice or work an injustice.”

12. The 1st Respondent through the Law Firm of Njoroge Regeru & Co. Advocates, filed its written submissions opposing the application on 25th May 2023. The 1st Respondent raised 5 issues for consideration.On the first issue as to whether the application was brought without undue delay, it was submitted that the application was brought 5 years after the filing of the suit which constituted undue delay. The 5th Respondent relied on the case of Joshua Kimani v. Kiso Enterprises Ltd & 3 Others (2020) eKLR, wherein the Court held as follows:In the matter before me, the Plaintiff avers that he has realized there is need to broaden the prayers sought from the Court in order to cover all eventualities and that the Defendants would not be prejudiced in any way by the amendments. I have looked at the draft amended Plaint, While the Plaintiff avers that he merely intends to broaden the prayers, a perusal thereof reveals that the Plaintiff intends to literally amend the entire Plaint and to introduce a completely new version of Paragraphs 8 to 13 as well as an additional paragraphs 16 to 19. While it is true that the said amendments are based on facts arising from the same circumstances leading to the filing of this suit, the Plaintiff does not state why the said amendments were not brought earlier in the day...”

13. On the second issue on whether the amendments were necessary, the 1st Respondent submitted that the application was a waste of judicial time and that it was not proven that a Court Order necessitated the amendments. It was further submitted that the leadership wrangles in Kandara Residence Association/Kandara Residents Association were untenable and therefore amendments were to occur every time there was a change of leadership of the Society.On the third issue as to whether the application was an abuse of the Court process, the 1st Respondent submitted that the proposed amendments were likely to introduce untold confusion to the Court record. The 1st Respondent relied on Order 2 Rule 6 of the Civil Procedure Rules which prohibited new facts being raised in subsequent amendments to a suit. It states as follows:(1)No party may in any pleading make an allegation of fact, or raise any new ground of claim, inconsistent with a previous pleading of his in the same suit.(2)Subrule (1) shall not prejudice the right of a party to amend, or apply for leave to amend, his previous pleading so as to plead the allegations or claims in the alternative.”

14. The 1st Respondent further submitted that the application was for joinder and substitution of parties which is disguised as an application for amendment, which the Court should not permit. They relied on the case of Gladys Nduku Nthuki v. Letshego Kenya Ltd: Mueni Charles Maingi (Intended Plaintiff) (2022) eKLR, in which the Court held as follows:It is clear that what the appellant sought to do before the Senior Principal Deputy Registrar was to "substitute" a party in the guise of an "amendment application" under 0. 6 R3. Of course, it was convenient to use 0. 6R3 and easier to argue that amendment sought arose out of the same cause of action. because what The appellants were wrong in invoking 0. 6A they were seeking went beyond a simple amendment of the plaint; they sought to introduce a new defendant who clearly had the defence of limitation available to him. He would have certainly invoked the defence if a whole, new suit had been filed against him, but instead the appellants sought to sneak him on through an amendment, in a round-about way.”

15. On the fourth issue as to whether the proposed amendments would change the character of the suit drastically, the 1st Respondent, submitted that the proposed amendments were so radically different to amount to a new cause of action such as the addition of seven new parcels of land. It was further submitted that the proposed amendments departed from the substance of the original Plaint, reframing the matter as a historical land injustice matter. Reliance was placed on the case of Eastern Bakery v. Castelino (1958) EA 462, where the Court held as follows:“…There is no power to enable one distinct cause of action to be substituted for another, not to change, by means of amendment, the subject matter of the suit. the Court will refuse leave to amend where the amendment would change the action into one of a substantially different character or where the amendment would prejudice the rights of the opposite party existing at the date of the proposed amendments e.g. by depriving him of a defence of limitation accrued since the issue of the writ…”

16. On the final issue as to whether the proposed amendments would cause an injustice to the 1st Respondent, which could be compensated by costs, the 1st Respondent submitted that the proposed amendments were haphazard and failed to follow Court procedures. It was further submitted that the Applicants’ proposed amendments were necessitated by interlocutory orders which may be be lifted upon termination of the suit, and which would delay the matter further and contribute to more confusion. The 1st Respondent relied on the case of Daniel Ngetich & Another v. K-Rep Bank Ltd (2013) eKLR, where the Court held as follows:Normally the Court should be liberal in granting leave to amend a pleading. But it must never grant leave for amendment if the Court is of the opinion that the amendment would cause injustice or irreparable loss to the other side or if it is a device to abuse the process of the Court. The power to allow amendments is intended to do justice; for, all amendments ought to be allowed which (a) do not work injustice to the other side, and (b) are necessary for the purpose of determining the real question in controversy between the parties; and all the authorities lay down precisely the same doctrine, that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. The Court must aim at seeing that a multiplicity of suits is avoided, the real matters in controversy between the parties are clearly brought out, the other party is not prejudiced, the character of the suit or defence is not altered, and the object of the amendment is not to abuse the process of the Court or unnecessarily delay justice or work a clear injustice.”

17. The 4th Respondent through the Law Firm of Kimwere Josphat & Co. Advocates, similarly filed their submissions opposing the application on 23rd May 2023. It is the 4th Respondent’s submission that the application seeking amendments came five years after the filing of the suit and was therefore time barred. They relied on the case of Central Kenya Ltd v. Trust Bank Ltd (2000) 2 E.A. 365, wherein the Court held as follows:A party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay.”

18. Finally, it was submitted that the proposed amendment having been brought after inordinate delay, would cause a great injustice to the 4th Respondent.The above being the pleadings filed by the parties and the rival written submissions in support and opposition of the instant Application, the Court finds the issues for determination are;1. Whether leave to amend the Plaint should be granted to the Plaintiffs?2. Who should bear costs of the instant application?The suit herein was filed in Court on 27th June 2018, by the Plaintiffs/Applicants who were referred as follows;Kandara Residents Association - 1st PlaintiffKarira Kimara - 2nd PlaintiffGeorge Njigu - 3rd PlaintiffJudy Wairimu Kimemia - 4th PlaintiffMichael Njoroge - 5th Plaintiff

19. However, on 18th September 2021, the Court held in its Ruling that the 1st Plaintiff – Kandara Residents Association, had no legal capacity to bring this suit. Consequently, the 1st Plaintiff’s suit was found incompetent and thus struck out. Therefore, this suit as it stands is by the 2nd – 5th Plaintiffs, in their own individual capacities. Since 2018, there have been serval interlocutory applications, and thus the suit has never taken off for the main hearing. Actually, this suit is a backlog.Be that is it may, the Court must now proceed to determine whether this Application is merited or not.

1. Whether leave to amend the Plaint should be granted to the Plaintiff? 20. Order 8 of the Civil Procedure Rules spells out the provisions for amendments of pleadings.Order 8 Rule 3(1) of the said Rules provides;(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.

21. Further Order 8 Rule 5 of the same Rules provides;(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.

22. It is therefore clear from the above provisions of law that the Court has discretion to allow or not to allow an amendment to pleadings at any stage of the proceedings, but before Judgement. However, such discretion must be exercised Judiciously.Time and again, Courts have severally held that Amendments sought before hearing should be freely allowed, if they can be made without causing injustice to the other side and no injustice is caused to the other side if he can be compensated with costs. See the case of Eastern Bakery Vs Castelino, Civil Appeal No. 30 of 1958. Further it is clear that amendments of pleadings are allowed to enable the Court to determine the real issues in controversy between the parties once and for all. See the case of Central Kenya Ltd vs Trust Bank Ltd. (2000) ZEA 365, where the Court held;A party is allowed to make such amendments as may be necessary in determining the real questions in controversy or to avoid a multiplicity of suits, provided there has been no undue delay……………..”

23. Therefore, it is clear that for a Court to allow any amendment to the pleadings, it has to first look at the intention and purpose of the amendments, and whether any prejudice will be suffered by the other party or parties in dispute, and whether the prejudice can be compensated by way of costs. See the case of Elija Kipngeno Arap Bii vs Kenya Commercial Bank Ltd (2013)eKRL, where the Court held while Quoting from Bullen and Leake & Jacob’s Precedents of Pleadings – 12th Edition;……………The ratio that emerges out of what was quoted from the said book is that powers of the Court to allow amendment is to determine the true, substantive merits of the case; amendments should be timeously applied for; power to so amend can be exercised by the Court at any stage of the proceedings (including appeal stages); that as a general rule, however late, the amendment is sought to be made it should be allowed if made in good faith, provided costs can compensate the other side; that the proposed amendment must not be immaterial or useless or merely technical; that if the proposed amendments introduce a new case or new ground of Defence, it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action;

24. From the above decisions, the legal parameters that govern amendments of pleadings can be summarized as below; Amendments should not introduce new or inconsistent cause of action or issues.

Amendments should be made timeously

It should not affect any vested interest or accrued legal right

It should not prejudice or cause unjustice to the other party.

25. The Applicants have alleged that though the suit herein was filed in the year 2018, new developments touching on the subject matter have occurred, which have necessitated the amendments to the Plaint. Such developments were the order of the High Court in Milimani HCCC E275 of 2021, which barred some officials of Kandara Residents Associations from holding office, and that some information also emerged during the proceedings before the National Assembly, and which information the Plaintiffs/Applicants would like the Court to consider.The Defendants/Respondents on the other hand have alleged that the amendments sought have been brought late in the day, and they would thus prejudice the Respondents herein.The Court has now considered all the factors and finds as follows;

26. As a general rule and as the Court stated earlier, amendments to pleadings sought before the hearing should be freely allowed if they can be made without causing injustice to the other side, which injustice cannot be compensated by costs (See Tildesley v Harper (1878) 10 Ch D 393).It is evident that the suit herein was filed in the year 2018. On 15th September 2021, the Court held that the suit by 1st Plaintiff – Kandara Residents Association, was incompetent and was thus struck out. The Plaintiffs did not seek to amend the Plaint then. Further the Plaintiffs/Applicants have alleged that some other amendments have been necessitated out of the information that was obtained during the proceedings before the National Assembly. When were these deliberations before the National Assembly? The Report attached to the Supplementary Affidavit is not complete and has no date and this Court cannot hold with certainty, when the said information come to the attention of the Plaintiffs/Applicants.Failure to amend the Plaint after the Ruling of 15th September 2021, and also immediately after the Report of National Assembly, meant that this Application was not brought immediately or timeously. The Applicants cannot peg their application on the Ruling of High Court made on 8th December 2022, because there are several other amendments that are not related to the Ruling on HCCCE275 OF 2021.

27. One of the Principles to consider in an application for amendment is whether the application was made timeously, and it is clear that the instant application was brought after a long delay. The suit has been pending in Court since 2018, and allowing this application would indeed prejudice the Defendants/Respondents especially the 1st Defendant/Respondent, who has always been keen to proceed with the matter. In the case of Sylvester Kyalo and Another vs Baysuf, Civil Appeal No. 38 of 1981 (1983) KLR 229, the Court held;“The Application to amend was very late and to grant leave to amend the Defence which proposes to take a complete somersault from the original one would both be unfair and cause heavy prejudice to the Respondents who is entitled…………”

28. Further an application for amendment should be made at the earliest opportunity and the right stage of proceedings. The Applicants herein should have sought to amend the Plaint once the Report of the National Assembly, was made public and also after the Ruling of the Court made on 15th September 2021. The Court finds that this application has been made too late in the day and allowing the same would cause injustice and prejudice to the Respondents, who have been on the Court corridors for the last 5 years. Being delayed in Court cannot be compensated with costs.The other Principle is that the amendments sought should not introduce new cause of action and should not prejudice the other party.The Court has looked at the Para 30 to 35 of the Draft Amended Plaint. These are new paragraphs which are sought to be introduced in the pleadings. Indeed, these paragraphs have introduced a new cause of action such as failure to call for public participation, the variance of the parcels of land, and the fact that this suit is instituted as a public interest suit. This new cause of action will prejudice the Defendants/Respondents herein. See the case of Central Kenya Ltd (supra) where the Court held;A party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the amendment can be allowed without unjustice to the other side”.

29. The Court too has considered the Draft Amended Plaint. In the said Plaint, though Kandara Residents Association, was struck out, it is still retained as a 1st Plaintiff. From the said Amended Plaint, the said party has not been deleted by striking it out using red ink. However, the 5th Defendant George Njigu has now been indicated as suing on behalf of Kandara Residents Association. The heading of the Draft Amended Plaint is not consistent with the amendment sought.Further Paragraph 8 has described the 3rd Defendant as the County Government of Murang’a, whereas in the Draft Amended Plaint, the 3rd Defendant is the County Government of Kiambu. Again Paragraph 27, has described 1st Plaintiff as compromising members of the public, who live within the environs of the land in question.The above description cause more confusion, given that Kandara Residents Association, was struck out on 18th September 2021, and given that the Applicants have alleged that the 1st Plaintiff on the Amended Plaint is Karira Kimara. Therefore, there is inconsistency in the draft Amended Plaint.

30. The Court has also noted that the applicants have alleged that the amendments were necessitated by the High Court Order of 8th December 2022. A look at the said Ruling referred to informs this Court that this was an Interlocutory Application and thus an Interlocutory Ruling. This is not a final order of the Court. Does it mean if the Court was to rule otherwise at the end of that case, then the Plaintiffs/Applicants will come back to Court to seek for further amendments?The Court will concur with the 1st Respondent submissions that the amendments are unnecessary and are not brought in good faith. It is very clear that in considering whether to allow an amendment of pleadings or not, the Court takes into account that an application which is made Mala fide, should not be granted. See the case of Gaso Transport Services (Bus) Ltd vs Martin Obene (1990-1994) EA 88(SCU);

31. Having considered all the pleadings herein and the rival written submissions and taking into account that a decision on whether to amend or not to amend is an exercise of Judicial discretion, the Court finds that it would not be prudent to exercise the said judicial discretion by allowing the amendments sought herein. Allowing the amendment would cause more prejudice, confusion and injustice than the general good as alleged by the Plaintiffs/Applicants.The Application was not brought timeously, and thus there was undue delay. If the Plaintiffs/Applicants feel that the cause of action has changed, maybe, the best they can do so, is to have the whole suit withdrawn, and then they could file a proper suit, with the proper and necessary parties, and then include the proper cause of action.

(ii) Who should pay costs of the Application? 32. The Plaintiffs/Applicants have not succeeded in their application for leave to amend. The 1st & 4th Defendants/Respondents are the successful parties and are thus entitled to costs.

The upshot of the foregoing is that the Plaintiffs/Applicants Notice of Motion Application dated 16th March 2023, is found not merited, and the said application is dismissed entirely with Costs to the 1st and 4th Defendants/Respondents.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 18TH DAY OF JULY, 2023. L. GACHERUJUDGEDelivered online in the presence of; -Mr Ikua for the Plaintiffs/ApplicantsMr Thuo for the 1stDefendant/Respondent2ndDefendant / Respondent - Absent3rdDefendant / Respondent - AbsentM/s Macharia for the 4thDefendant/ Respondent5thDefendant/ Respondent - AbsentJoel Njonjo - Court AssistantL. GACHERUJUDGE18/7/2023ELC Case No. 53 of 2018 8R | 8