[2024] KEELC 3743 (KLR)
The court found that the 1st Defendant had demonstrated sufficient grounds for the amendment of his defence and counterclaim to join the Chief Land Registrar and Nairobi City County Government as defendants. Their participation is necessary to determine whether the Plaintiff's title to the suit property was...
Source-derived case information.
- Citation
- [2024] KEELC 3743 (KLR)
- Parties
- Plaintiff: Zipporah Wairimu Mwangi; Defendant: Josephat Kanyungo; Proposed Defendant: The Chief Land Registrar; Proposed Defendant: The Nairobi City County Government
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E178 of 2023
- Procedural Posture
- Environment and Land Case / Ruling on Application to Amend Defence and Join Parties
- Outcome
- Application allowed; leave granted to amend defence and counterclaim and to join proposed defendants.
- Judges
- LN Mbugua
- Legal Topics
- Joinder of Parties, Amendment of Pleadings, Title Registration Disputes, Succession and Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Zipporah Wairimu Mwangi
Plaintiff
Josephat Kanyungo
Defendant
The Chief Land Registrar
Proposed Defendant
The Nairobi City County Government
Proposed Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Amend Defence and Join Parties
Legal Issues
- 1 Whether the 1st Defendant should be granted leave to amend his statement of defence and counterclaim to join the Chief Land Registrar and Nairobi City County Government as defendants.
- 2 Whether the proposed joinder and amendment are necessary for the just determination of the issues in dispute.
- 3 Whether the amendment would cause injustice to the opposite party.
Ratio Decidendi
The court found that the 1st Defendant had demonstrated sufficient grounds for the amendment of his defence and counterclaim to join the Chief Land Registrar and Nairobi City County Government as defendants. Their participation is necessary to determine whether the Plaintiff's title to the suit property was procedurally issued. The court noted that the application was unopposed and that the proceedings had not yet commenced in earnest, minimizing any risk of injustice to the Plaintiff or other parties. The court exercised its discretion under Order 8 Rule 5(1) of the Civil Procedure Rules to allow the amendment and joinder, emphasizing that justice is best served by having all relevant...
Court Disposition
Application allowed; leave granted to amend defence and counterclaim and to join proposed defendants.
Orders
- The 1st Defendant is granted leave to amend his statement of defence and counterclaim to join the Chief Land Registrar and Nairobi City County Government as defendants.
- The applicant shall file and serve the amended Defence and Counter Claim, comprehensive witness statements, and documentary evidence upon all parties within 21 days.
Full Case Text
Judgment text and source record
31 paragraphs
Mwangi v Kanyungo & 2 others (Environment & Land Case E178 of 2023) [2024] KEELC 3743 (KLR) (24 April 2024) (Ruling)
Neutral citation: [2024] KEELC 3743 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case E178 of 2023
LN Mbugua, J
April 24, 2024
Between
Zipporah Wairimu Mwangi
Plaintiff
and
Josephat Kanyungo
Defendant
and
The Chief Land Registrar
1st Proposed Defendant
The Nairobi City County Government
2nd Proposed Defendant
Ruling
1. The 1st Defendant’s Notice of Motion dated 14. 2.2024 is for determination. He seeks leave to amend his statement of defence and counterclaim dated 2. 10. 2023 to join the Chief Land Registrar and the Nairobi City County as Defendants as well as leave to file a further list of documents.
2. The application is based on grounds on its face and on the 1st Defendant’s supporting affidavit sworn on 14. 2.2024. He avers that he is the administrator of the Estate of Symon Githae Kanyugo (deceased) who was a registered member of Kayole Spring Valley Resettlement Scheme having purchased the property formerly known as Plot No. 684 Kayole Spring Valley Resettlement scheme and now known as Nairobi /Block 190/2209.
3. He avers that in her pleadings, the Plaintiff contends that she purchased the suit property from one Francis Mutuku who had allegedly in turn purchased that land from Salome Flassie Waithira Mutugi, a widow to Symon Githae Kanyugo (deceased).
4. He contends that at the time of the purported sale and transfer, succession proceedings relating to the estate of the deceased had not commenced, thus the parties in the alleged sale transaction had no capacity to transact.
5. That despite the intended 3rd Defendant being aware that the suit property had been illegally transferred to the Plaintiff, it proceeded to execute the transfer instrument for the suit parcel in favour of the Plaintiff.
6. That further, the Plaintiff and the intended 3rd Defendant caused the intended 2nd Defendant to register the transfer, process andissue the title over the suit property in the name of the Plaintiff which action is an affront to the deceased’s estate’s constitutional rights to protection of their right to property.
7. The application is unopposed.
8. The applicant filed submissions dated 15. 3.2024 which I have duly considered.
9. The provisions of Order 8 Rule 5 (1) of the Civil Procedure gives the court discretion to allow amendment of pleadings. While applying the said provision in Diamond Trust Bank Kenya Limited v John Wakaba Joseph & another [2013] eKLR, the court stated that:“…….Order 8 Rules 3 and 5 of the Civil Procedure Rules gives the court discretion to allow amendments at any stage of the proceedings in order to bring forth all issues in dispute between the parties for exhaustive and conclusive determination. The significant and guiding principle is to do justice between the parties. This can only be achieved by having all issues in dispute being brought forth for the Court to determine them. The law is clear that amendments will be freely allowed at any stage of proceedings provided no injustice is caused to the opposite party.”
10. The court has considered the application and the law. The 1st Defendant has demonstrated that the joinder of the proposed 2nd and 3rd Defendants is necessary as their participation in these proceedings will enable the court to unravel whether the title to the suit parcel was procedurally issued to the Plaintiff. Further, the court has considered that this case is yet to take off and that so far, the application is unopposed.
11. In the circumstances, the application is allowed with no orders as to costs. The applicant is to file and serve the amended Defence and Counter Claim alongside comprehensive witness statements and documentary evidence upon all parties within 21 days failure to which the orders granted herein shall lapse.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF APRIL, 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Court assistant: Eddel