[2015] KEHC 6888 (KLR)
The court found that the proposed amendments were necessitated by constitutional changes, specifically the replacement of the County Councils with County Governments and the Commissioner of Lands with the National Land Commission. The amendments were deemed necessary for the proper determination of the issues in...
Source-derived case information.
- Citation
- [2015] KEHC 6888 (KLR)
- Parties
- Applicant: Mbeere Elders Advisory Welfare Group; Applicant: David Miti Njuki; Applicant: Njeru Banda; Applicant: Eston Nyaga Nthiga; Applicant: Seraphino Ngari; Respondent: The Attorney General; Respondent: Commissioner of Lands; Respondent: Director of Land Adjudication; Respondent: Chief Land Registrar; Respondent: District Land Registrar Mbeere District (South); Respondent: The County Council of Mbeere
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 1 of 2014
- Procedural Posture
- Constitutional Petition / Ruling on Application to Amend Petition and Join Parties
- Outcome
- Application to amend petition and join parties allowed; costs in the cause.
- Legal Topics
- Joinder of Parties, Amendment of Pleadings, Public Land Management, Constitutional Transition, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbeere Elders Advisory Welfare Group
Applicant
David Miti Njuki
Applicant
Njeru Banda
Applicant
Eston Nyaga Nthiga
Applicant
Seraphino Ngari
Applicant
The Attorney General
Respondent
Commissioner of Lands
Respondent
Director of Land Adjudication
Respondent
Chief Land Registrar
Respondent
District Land Registrar Mbeere District (South)
Respondent
The County Council of Mbeere
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application to Amend Petition and Join Parties
Legal Issues
- 1 Whether the petitioners/applicants have met the criteria for the grant of leave to amend the petition.
- 2 Whether injustice will be caused to the respondents by the proposed amendments.
- 3 Whether the joinder of the intended parties is necessary for the proper determination of the issues in dispute.
Ratio Decidendi
The court found that the proposed amendments were necessitated by constitutional changes, specifically the replacement of the County Councils with County Governments and the Commissioner of Lands with the National Land Commission. The amendments were deemed necessary for the proper determination of the issues in dispute. The court held that no injustice would be caused to the respondents by allowing the amendments, as any potential prejudice could be compensated by costs. The joinder of the new parties was also found to be essential for resolving the real questions in controversy. Accordingly, the application to amend the petition and join the new parties was allowed, with costs to be in...
Court Disposition
Application to amend petition and join parties allowed; costs in the cause.
Orders
- The application of the petitioners/applicants is allowed in terms of their prayers in the notice of motion.
- Costs of this application shall be costs in cause.
Full Case Text
Judgment text and source record
48 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
E.L.C.A PETITION NO 1 OF 2014
MBEERE ELDERS ADVISORY WELFARE GROUP.................................... 1st PETITIONER
DAVID MITI NJUKI......................................................................................... 2nd PETITIONER
NJERU BANDA.............................................................................................. 3rd PETITIONER
ESTON NYAGA NTHIGA............................................................................... 4th PETITIONER
SERAPHINO NGARI...................................................................................... 5th PETITIONER
VERSUS
THE ATTORNEY GENERAL..................................................................... 1st RESPONDENT
COMMISSIONER OF LANDS................................................................ 2nd RESPONDENT
DIRECTOR OF LAND ADJUDICATION................................................. 3rd RESPONDENT
CHIEF LAND REGISTRAR...................................................................... 4th RESPONDENT
DISTRICT LAND REGISTRAR MBEERE DISTRICT (SOUTH)............ 5th RESPONDENT
THE COUNTY COUNCIL OF MBEERE................................................ 6th RESPONDENT
RULING
INTRODUCTION
The petitioners are seeking orders from this court to amend their amended petition by including the following:
That the National Land Commission be enjoined as the 7th respondent.
That the Embu County Government through its secretary for Land and Planning be enjoined as the 8th respondent.
That the costs of this application be provided for.
They have supported their application by a sworn affidavit of Eston Nyaga Nthiga.The proposed amendments are opposed by the County Council of Mbeere who is the respondent to this application.
The Case for the Petitioners/Applicants:
The case for the petitioners/applicants is that they have been forced by the changes brought about by the 2010 Constitution of Kenya to amend their amended plaint. Simply put, the new Constitution has created the National Land Commission which is charged with the responsibility of managing public land. This commission has replaced the Office of the Commissioner of Lands. The proposed 8th respondent has also replaced the County Council of Mbeere, 6th Respondent. Furthermore, the petitioners/applicants have stated that the amendments are necessary for the proper determination of the issues in dispute.
The Case for the Sixth Respondent
The 6th respondent has opposed the proposed amendments. He says that the allegations of the petitioner are untrue and unfounded. He has further stated that the petitioners/applicants have no right to represent the County Council of Mbeere. Finally, he says that the rights of the petitioners/applicants have not been infringed.
The Applicable Law
The law that governs the amendment of of pleadings is governed by Order 8 of the 2010 Civil Procedure Rules in particular Rule 5thereof. According to the case of Eastern Bakery v. Castelino (1958) EA 461 (CA) amendments to the pleadings should be freely allowed before trial of a case if they can be made without any justice to the other side. That court went further to state that injustice will not be caused to the other side if it will adequately be compensated on costs.
Issues for Determination:
In the light of the submissions by both counsel, their affidavit evidence and the law, the issues for determination are as follows:
Whether or not the petitioners/applicants have met the criteria for the grant of leave to amend.
Whether or not injustice will be caused to the respondents.
Whether or not the joinder of the intended parties is necessary for the proper determination of the issues in dispute.
Who should pay for the costs of this application
Evaluation of the Evidence and the Law:
Having considered the submissions, the issues raised and the law, I have come to the conclusion that the proposed amendments are necessary for the proper determination of the issues in dispute. The proposed amendments have been brought about by the changes contained in the 2010 Constitution of Kenya. This is clear from the abolition of the former County Councils and their replacement with the County Governments.Additionally, the abolition of the Office of the Commissioner of Lands and it being replaced by the National Land Commission, necessitates that the amendments should be allowed.
Furthermore, no injustice will be caused to the respondents if the orders sought are granted. It is equally necessary that the enjoinment of the proposed parties is necessary for the proper determination of the issues in dispute.
And in respect as to who should pay the costs of this application, I direct that costs of this application shall be costs in cause.
Verdict and Disposal Order:
In the light of what I have stated above, I hereby make the following orders:
The application of the petitioners/applicants is allowed in terms of their prayers in the notice of motion.
Costs of this application shall be costs in cause.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 19thday of January,2015
In the presence Mr Kamunda
Court clerk Mr Muriithi
Right of appeal under Order 43 Civil Procedure Rules explained to the parties.
J.M. BWONWONGA
JUDGE