[2023] KEELC 22018 (KLR)

Mwandale v National City Council & 3 others (Environment & Land Petition E081 of 2018) [2023] KEELC 22018 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KEELC 22018 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Petition E081 of 2018

EK Wabwoto, J

November 30, 2023

Between

Joackim Okessa Mwandale

Petitioner

and

National City Council

1st Respondent

Thabiti Finance Co Ltd (In Liquidation)

2nd Respondent

Welvin Investments Limited

3rd Respondent

1st Class Magistrate

4th Respondent

Ruling

1. Before me for determination is an application dated 26th May 2023 and accompanied by Supporting Affidavit sworn by Joackim Okessa Mwandale. The Applicant sought the following orders:i.….Spent.ii.…Spent.iii.That upon hearing and determination of this application, this Honourable Court be pleased to grant leave and leave is hereby granted to the Petitioner /Applicant to the file an Amended Petition, other pleadings and other additional documents.iv.That upon hearing and determination of this application, this Honourable court be pleased to order and it is hereby ordered that the 1st Respondent herein Nairobi City County, does provide the Petitioner with a Rates Account Statement in respect of Nairobi / Block 110 / 442 for the entire period (1992-2021) when the property was in his name.v.That upon hearing and determination of this application, this Honourable Court be pleased to order and it is hereby ordered that the 1st Respondent herein Nairobi City County, does provide the Petitioner /Applicant with a copy of the Settlement Account in respect of Nairobi / Block 110 / 442 and a copy of the full instructions given to P.G Waweru T/A as Ideal Auctioneers to sell the rates-charged property Nairobi / Block 110 / 442. vi.That upon hearing and determination of this application, this Honourable Court be pleased to order and it is hereby ordered that the 2nd Respondent herein Thabiti Finance Limited, does provide the Petitioner / Applicant with a Loan Account Statement in respect of the money received on account of a loan granted to the Petitioner /Applicant secured by a charge on Nairobi / Block 110 / 442 for the entire period.vii.That upon hearing and determination of this application, this Honourable Court be pleased to order and it is hereby ordered that the 1st Respondent herein Nairobi City County, does provide the Petitioner / Applicant with a copy of a Rates-Charge endorsed by the Land Registrar on Nairobi / Block 110 / 442 pursuant to the decree of the subordinate court.viii.That upon granting of leave to file an Amended Petition and the Draft Amended Petition and any other documents to be filed be and is hereby deemed to be properly filed upon payment of the requisite court filing fees.ix.That this Honourable Court be pleased to give further directions on the hearing of the main suit upon granting the Respondents corresponding leave to file a response to the amendments.x.That costs of the application be in the cause;

2. The application was premised on 30 grounds including:a.That the Nairobi City County ordered for the valuation of the property known as Nairobi / Block 110/442 to be done and the same was done and a report dated 26th August 2013 indicated that the property had a market value of Kshs 20,000,000. 00 and a forced sale value Kshs 15,000,000. 00. b.That the Nairobi City County proceeded to obtain orders to sell the property when the Petitioner defaulted in payments of rates and sought to sale the suit property ostensibly under the provisions of the Rating Act, Chapter 267 of the Laws of Kenya.c.That at the time of filing the Petition, it was not known that indeed the property had been valued and given a market value of Kshs 20,000,000. 00 and a forced sale value of Kshs 15,000,000. 00 facts which are not contained in the Petition on record hence necessitating the instant application for leave to amend and include them.d.That property was alleged to have been sold in a public action for Kshs 6,500,000. 00 to Welvin Investments Limited and yet the forced sale value was Kshs 15,000,000. 00 and that the amendment is necessary to enable the Honourable Court to effectually and completely adjudicate and settle all legal questions in dispute in this suit, including why and how a property was allegedly sold at a price less than half the forced sale value if indeed the sale was proper and lawful and who is liablee.That the auctioneer P.G. Waweru, T/A Ideal Auctioneers who was assigned the responsibility by the Nairobi City County allegedly sold the property for a measly Kshs 6,500,000 in an auction which did not take place since the Petitioner leant this from those who were in attendance on the 15th November 2013 the date of the alleged auction.f.That the Petitioner stands to suffer injustice if this application for leave to amend is not allowed since he would be bound by pleadings which are incomplete and in which his main claim of how is pricy property was allegedly sold for a mere Ksh 6,500,000. 00 and yet it was valued at Kshs 20,000,000. 00 is not properly pleaded upon discovery of new and important information.g.That the Petitioner has had to write to the Institute of Surveyors of Kenya to confirm the true value of the property at the time the alleged sell was undertaken under clearly concealed circumstances.h.That in order to corroborate the valuation done on the instructions of the Rates-Chargee Nairobi City County, the Petitioner has had to engage the services of an independent valuer who has returned the verdict that indeed at the time of the alleged sale the property was valued at approximately Kshs 20,000,000. 00i.That the law expected the Rates-Chargee, Nairobi City County to be mindful of the rights and interest of the person whose property was being sold (if there was a reason to do so) such as the Petitioner herein but instead its agents connived and purported that the property was sold for Kshs 6,500,000. 00 and yet it had a reserve price being the force sale value of Kshs 15,000,000. 00j.That if the leave sought is not granted and therefore the proposed amendments are not included in the case then the Petitioner will not only suffer prejudice but denial of justice since his property would have been taken away at a mere Kshs 6,500,000. 00 while it was valued at Kshs 20,000,000. 00 without a recourse as he would have been denied an opportunity to place his entire case before the Honourable Court for consideration and determination.k.That finding documents to support the amendments have been difficult and it has taken a while to get them and even persons who would be witnesses to support the unearthing of the wrongdoing meant to be laid bare through the amendments.l.That this application has been made timeously and any delays has been caused by circumstances beyond the control of the Petitioner upon realization that without the proposed amendments then the real questions in dispute will not be placed before the court for complete determination.m.That the main dispute herein is yet to be settled down for hearing since the hearing date which was set as 8th June 2023 can be vacated so as to ensure that the amendments are made and the Respondents respond to the critical issues to be raised in the amendment and eventually substantive justice is done.n.That this application is brought in good faith with the sole purpose of allowing the Honourable Court opportunity to deal with all the issues in dispute and any inconvenience that may be suffered by the Respondents may be remedied through costs.

3. Pursuant to the directions issued by this court on 25th July 2023, parties were directed to canvass the application by way of written submissions. The Petitioner/Applicant filed written submissions dated 8th September 2023 while the 2nd Respondent filed written submissions dated 3rd October 2023.

4. In the Petitioner’s submissions dated 8th September 2023, the following issues were outlined for determination:a.Whether the leave to amend is sought before the matter comes for hearing?b.Whether the proposed amendment substantially different in character which could more conveniently be made the subject of a fresh action?c.Whether there will be prejudice suffered in the delay?d.Whether the Petitioner is entitled to information from the Nairobi City County?

5. It was submitted that the threshold for amendment of pleadings had been met. It was argued that the suit herein was filed on the 29th November 2018 and by that time the facts necessitating the application to seek amendments were not known. It was further submitted that although this Court may have intended this matter be heard expeditiously the matter is still on its early stages and as it stands the first hearing date is the one that has been vacated to give room for the consideration of the application seeking an amendment. It was further submitted that the purpose of the proposed amendments is to allow the Petitioner to place his entire claim before this Court for consideration and eventual resolution in a just manner as between the parties herein and ensure proper use of judicial time since it would be expeditious if these questions amongst others are dealt with together.

6. It was also submitted that the proposed amendment stems from the same cause of action and that it was after the discovery by the Petitioner that his property which was valued at Kshs 20,000,000. 00 with a forced sale value of Kshs 15,000,000. 00 was allegedly sold at a mere Kshs 6,500,000. 00 in a mysterious sale in an alleged public auction where the alleged highest bidder continued to add more money to complete the transaction way beyond what he had alleged offered at the fall of the hammer contrary to all known regulations and provisions of under the Land Act, 2012 and the Auctioneers Act.

7. With regards to whether prejudice would be suffered, it was argued that the Respondent will have an opportunity to demonstrate whether or not the transaction was above board and was done procedurally or lawfully. Relying on the case of Beatrice Gikunda v CFC Life Assurance Limited [2020] eKLR, the Court was asked to consider similar circumstances in that this instant case had not proceeded to any significant steps in hearing, no witnesses have testified and no documents have been produced in evidence.

8. The application was opposed by the 2nd Respondent who relied on its written submissions dated 3rd October 2023 and Replying Affidavit sworn by John Magesa Ombasa on the 21st July 2023 in which the 2nd Respondent outlined three main issues for determination:a.Whether the application has been brought with undue delay?b.Whether the intended amendments of the petition substantially alter the character of the petition?c.Whether the applicant is entitled to the grant of orders for production of documents against the respondents.

9. Relying on the case of Kassam v Bank of Baroda (Kenya) Ltd [2002] eKLR, it was argued that the Applicant’s claim was untenable since the alleged discovery of new information on the value of the suit property at this late stage of the proceedings is despite the fact that he was duly involved and participated in the sale of the suit property to the 3rd respondent and his further acknowledgment of monies received as proceeds of the suit property. It was further submitted that the intended amendments sought to plead and introduce an alleged fraud involving the 1st and 3rd Respondent at the time of auctioning the suit property on 15th November 2013. It was also asserted that the orders sought by the applicant are not tenable in law as the same amount to fishing expedition for grounds to support his own suit as against the respondents.

10. Having perused the written submissions, rival affidavits and supporting documents, it is evident that the issue for determination before this Court is whether the Applicant’s application dated 26th May 2023 is merited.

11. With regards to amendment of pleadings, Order 8 Rule 3 of the Civil Procedure Rulesoutlines that: -“… 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”

12. Further, Order 8, rule 5 gives the Court the general power to amend in that:“5. (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…”

13. Rule 18 of The Constitutionof Kenya (protection of rights and fundamental freedoms) Practice and Procedure Rules, 2013, states:“…A party that wishes to amend its pleadings at any stage of the proceedings may do so with the leave of the Court…”

14. In Halsbury’s Laws of England, 4th Ed. (re-issue), Vol. 36(1) at paragraph 76, state the following about amendments of pleadings: -“…. The person applying for amendment must be acting in good faith. Amendment will not be allowed at a late stage of the trial if on analysis of it is intended for the first time thereby to advance a new ground of defence. If the amendment for which leave is asked seeks to repair an omission due to negligence or carelessness, leave to amend may be granted if the amendment can be made without injustice to the other side…”

15. The Court of Appeal reiterated the principles governing amendment of pleadings in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited[2013] eKLR as follows: -“…The 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; that the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on Limitation Acts.”

16. In Institute For Social Accountability & another v Parliament of Kenya & 3 others [2014] eKLR the court held:-“…The power of amendment makes the function of the court more effective 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 or inconsistent cause 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.”

17. It is of paramount importance that this Court exercises its discretionary powers to ensure parties are not prejudiced in their pursuit for justice. Considering that the matter has not entered the hearing stage, I am inclined to allow the amendment of pleadings and filing of responses that I believe will ultimately aide in the expeditious determination of the matter. As for all other prayers sought, I find that the Petitioner has had sufficient time to source for documents from the respective Respondents and at this juncture has failed to prove on balance of convenience the prejudice to be suffered if the prayers are not granted.

18. In view of the foregoing, the Application dated 26th May 2023 partially succeeds and is allowed in the following terms:a.The Petitioner/Applicant is hereby granted leave to file and serve an Amended Petition and supporting documents within 14 days of delivery of this ruling.b.Upon filing and service by the Petitioner, the Respondents will have corresponding leave of 14 days to file and serve additional pleadings in response.c.Costs of this application will be abide final determination of the petition.d.Any other relief not granted is deemed as declined.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER 2023. E. K. WABWOTOJUDGE