[2024] KEELC 3719 (KLR)

Mwakisha (Chairman) & 2 others (Suing as officials of Jesus Worship Sanctuary) v Maghanga & another (Environment & Land Case 303 of 2017) [2024] KEELC 3719 (KLR) (24 April 2024) (Ruling)

Neutral citation: [2024] KEELC 3719 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case 303 of 2017

NA Matheka, J

April 24, 2024

Between

Pastor Samuel Venant Mwakisha (Chairman)

1st Plaintiff

Esther B Wambugha (Secretary)

2nd Plaintiff

Lewis D Piko (Treasurer)

3rd Plaintiff

Suing as officials of Jesus Worship Sanctuary

and

Emmanuel Chombo Maghanga

1st Defendant

Ahmed Ali Said

2nd Defendant

Ruling

1. The application is dated 18th November 2022 and is brought under Section 1A and 3A of the Civil Procedure Act, Order 7 Rules 3 & 8, Order 8 Rule 3, and Order 51 Rule 1 of the Civil Procedure Rules seeking the following orders;1. That the 2nd Defendant herein be granted leave to amend his statement of defence and include a counterclaim.2. That the draft amended amended statement of defence and counterclaim be deemed duly filed upon payment of requisite fee.3. That the costs be in the cause.

2. It is based on the annexed Affidavit of Gloria Nduku, Advocate and on the following general grounds that upon perusal of the documents provided by the 2nd Defendant on 18th November 2022 and upon taking his statement, it has become apparent that there is need to amend the statement of defence filed herein to include a counterclaim that the matter may be determined wholesomely. That the Plaintiffs and 1st Defendant will not suffer any prejudice should leave to amend be granted as the matter is still at its preliminary stage. That it is in the interests of justice and overriding objectives that the 2nd Defendant be granted leave to amend his statement of defence and counterclaim. The 1st plaintiff opposed the application through a replying affidavit sworn on 30/1/2024 went into the merits of the suit and opposed stating that the application is made in bad faith and a tactic to mislead the Honourable Court.

3. Counsel for the 2nd defendant in their submissions argued that the issues raised by the plaintiff do not concern the application and are to be handled during the main hearing. Counsel also relied on the overriding objectives in section 1A and 1B of the Civil Procedure Act and also on Order 8 Rule 5 (1) of the Civil Procedure Rules.

4. Having perused the application, the replying affidavit and the submissions thereto, the issue for consideration is whether or not the court can allow the prayers requested or not?

5. The general power to amend is found in section 100 of the Civil Procedure Act which provides that the parties can amend the pleadings to determine the real questions in controversy at any stage of the proceedings but it is a discretionary power. Counsel for the 2nd defendant cited Order 8 rule 5 of the Civil Procedure Rules which reiterates the above. There are several cases which have discussed amendment of pleadings which I will briefly mention below. I am guided by Joseph v Elena Chepkurgat Talam (sued as the legal administrator of the estate of the late Kiptalam Arap Kogo) (2019) eKLR, the court stated;The overriding consideration in an application for leave for amendment ought to be whether the amendments sought are necessary for the determination of the suit and whether the delay in bringing the application for amendment is likely to prejudice the opposite party beyond compensation in costs.”

6. The court of appeal in Central Kenya Limited v Trust Bank Limited (2000) 2 EA 365 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, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal rights is affected and that the amendment can be allowed without injustice to the other side.”

7. A look at what is amended is that a counterclaim has been introduced against the plaintiff and the 1st defendant. The plaintiff prays for an injunction against the defendants from disposing off LR No 5051/II/MN and also an order of specific performance to compel the defendants to transfer the same. The counterclaim by the 2nd defendant seeks eviction orders against the 1st defendant and the plaintiff and a permanent injunction. It alledges breach of contract by the 1st defendant. The court finds that the counterclaim raises issues which can be conclusively determined in this suit without necessary filing another suit and it would in assist in promoting quick disposal of the matter which is a constitutional right. I find that the application is merited and I grant it as prayed.

8. It is so ordered.

DELIVERED, DATED AND SIGNED AT MOMBASA THIS 24THDAY OF APRIL 2024. N.A. MATHEKAJUDGE