[2024] KEELC 13778 (KLR)

Mwanguo & another v Mboghori & 3 others (Enviromental and Land Originating Summons E001 of 2021) [2024] KEELC 13778 (KLR) (11 December 2024) (Ruling)

Neutral citation: [2024] KEELC 13778 (KLR)

Republic of Kenya

In the Environment and Land Court at Kwale

Enviromental and Land Originating Summons E001 of 2021

AE Dena, J

December 11, 2024

Between

Lily Michael Mwanguo

1st Plaintiff

Mwaura Dzeha Mwambire

2nd Plaintiff

and

Zakayo Muriuki Mboghori

1st Respondent

Land Registrar Kwale

2nd Respondent

The Honourable Attorney General

3rd Respondent

Mbiu Waiharo

4th Respondent

Ruling

1. This suit was commenced vide Originating Summons filed on 28/9/2021. The same is for a claim of adverse possession of land parcel number Kwale/Majoreni/1289. The Plaintiff amended the Originating Summons by a Further Originating Summons which was responded to by a replying affidavit filed before court on 2/5/2023. The Applicant further filed a Notice to Produce Documents dated 7/6/2024. The Notice to Produce is for the sale agreement in respect to all that parcel of land known as LR No Kwale/Majoreni/1289 Kwale County measuring approximately 4 Acres [41. 5] HA.

2 .In opposing the Further Amended Originating Summons and Notice to Produce both dated 7/6/2024, the 1st Respondent filed grounds of opposition as follows;-1. That the intention of mentioning the matter on 22nd April 2024 was for the Applicant to confirm if he had filed the certified copy of the green card and taking a hearing date since the parties had already confirmed they complied with Order 11 except the Claimant who had informed the court he was expecting to file only the green card for the suit property.2. That after the 1st Respondent confirmed compliance with order 11, the Applicants ought to have filed a formal application for leave to amend the Originating Summons to enable the Respondents formally oppose the same.3. That the Applicants served the 1st Respondent with their Further Amended Originating Summons by email when the counsel for the 1st Respondent was addressing the court and she did not have the opportunity to respond to the issue before perusing what had been served.4. That the Applicant is seeking to reopen the suit for pre-trial by filing a Notice to Produce dated 7th June 2024 too late in the day and the 1st Respondent may not have an opportunity to formally respond which is a pure abuse of the court process.5. That the Notice to Produce demands that we produce the sale agreement. The sale agreement is not among the documents the 1st Respondent is relying on in his defence and the applicant is abusing the court process by asking the 1st Respondent to aide him to proof his case6. That the Applicants counsel does not have any intention of prosecuting this matter to finality due to lack of evidence to support his case and is on a fishing expedition for evidence and has come up with numerous amendments which have greatly prejudiced the respondents by subjecting the 1st respondent to incur costs to including survey costs to assist the claimant know the alleged size of the land he has settled on and they are now seeking Notice to Produce so as to aid the claimant obtain evidence against him it is thus a delay tactic.7. That based on the Further Amended Originating Summons dated 7th June 2024, it is evidently clear that the parties who are being enjoined as the 2nd Applicant and the 4th Respondent were parties in the earlier Originating Summons and the 1st Applicant filed Further Amended Originating Summons removing them as parties to the suit which is a clear indication of the gross abuse of the court process and there is no explanation that has been adduced that has necessitated the change of circumstances.8. That the Further Amended Originating Summons is fatally defective null and void ab initio and it should be struck out with costs since there is no supporting affidavit in support of the originating summons by the 2nd Applicant and the deponent of the said supporting affidavit has failed to annex authority that she is swearing the said supporting affidavit on behalf of the 2nd Applicant.9. That there must be an end to litigation and it is contrary to public policy for this court to entertain such frivolous applications that are a nuisance to the Respondents and a waste of precious judicial time.10. That the Further Amended Originating Summons dated 7th June 2024 and Notice to Produce dated 7th June 2024 should be struck out with costs.

Submissions 3 .On 1/10/2024 I issued directions that the objection be dispensed off by way of written submissions. The ruling was to be delivered on 27th November 2024 was rescheduled due to the ELC Climate Justice Conference. But even as at the said date no submissions were on record.

4 .The court is called upon to make a determination on whether or not the originating summons should be further amended and the 1st Defendant/Respondent required to produce the sale agreement.

5 .The Notice to Produce has been made pursuant to the provisions of Section 69 of the Evidence Act which provides for instances in which secondary evidence may be admitted as evidence in court. It provides as follows:“Secondary evidence of the contents of the documents referred to in section 68(1)(a) of this act shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate, such a notice to produce it as is required by law or such notice as the court considers reasonable in the circumstances of the case:Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases-(i).When the document to be proved is in itself a notice;(ii).When from the nature of a case, the adverse party must know that he will be required to produce it;(iii).When it appears or is proved that the adverse party has obtained possession of the original by fraud or force;(iv).When the adverse party or his agent has the original in court;(vii).In any other case in which the court thinks fit to dispense with the requirement.”

6 .I have keenly perused the grounds of opposition to the Further Amended Originating Summons and the Notice to Produce dated 7/6/2024. The main contention is that the sale agreement that the Plaintiffs demand be produced is not among the documents the 1st Respondent is relying on in his defense. That the Applicant is abusing the court process by asking the 1st Respondent to aide him to prove his case. The Respondent further states that the Originating Summons is not supported by any affidavit making the same fatally defective.

7 .In making a determination over the opposition, I will first point out that the Further Amended Originating Summons is supported by an affidavit sworn by the Applicant Lilly Michael Mwanguo Chikove. It is deponed at paragraph 3 thereof that the 1st Defendant is the registered owner of the property Kwale/Majoreni/1289 Kwale County measuring approximately 4 Acres [41. 5] HA hereinafter referred to as the suit property. That the 4th Respondent is the previous owner of the suit property and as per the extract of a green card obtained by the Applicant, the suit property was previously owned by Stephen Flavian Mwangi who passed away on 18/6/1999 as per an extract of the Kenyan gazette 7716 page 2412 Vol CXX-No 89 of 27/7/2018 where a grant of letters of administration had been applied over the estate of the said Stephen Flavian Mwangi.

8 .At paragraph 7 of the affidavit, the Applicant states that the entries on the green card raise an eyebrow as to why the 1st Proprietor would retain the suit property for 36 years then sale the same to the 2nd Proprietor only for him to pass over the same to the 3rd Proprietor within a year. It is stated that the 1st respondent claims to be a bonafide purchaser for value of the suit property and should therefore produce a sale agreement for an understanding of the terms in the said agreement.

9. Mwita J in Lustman & Company (1990) Limited v Corporate Business Centre Limited & 4 others (Civil Suit 311 of 2018) [2022] KEHC 42 (KLR) (Commercial and Tax) (4 February 2022) (Ruling) referred to the Supreme Court of India decision in M. L. Sethi vs R. P. Kapur, 1972 AIR 2379, 1973 SCR (1) 697, where it was observed that:“The documents sought to be discovered need not be admissible in evidence in the enquiry or proceedings. It is sufficient if the documents would be relevant for the purpose of throwing light on the matter in controversy. Every document which will throw any light on the case is a document relating to a matter in dispute in the proceedings, though it might not be admissible in evidence. In other words, a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary's case or which may lead to a trail of enquiry which may have either of these two consequences. (Emphasis is mine)

10 .From the above decision, and as latter observed by the court in Lustman & Company (1990) Limited v Corporate Business Centre Limited & 4 others[supra] it is clear that where a document would throw light on the matter in dispute, the discovery of that document would be considered relevant even though the document may be inadmissible in evidence in the long run. It is the relevance of the document and not its admissibility that matters.

11 .The gist of this matter is based on the doctrine of adverse possession as claimed by the Applicants. In opposing the same, the 1st Respondent states that he is a bonafide purchaser for value of the suit property having purchased the same from one Mbiu Waiharo. That he took physical possession of the same and entered into a lease agreement with Kwale International Sugar Company Limited for the entire parcel and it was confirmed that the land did not have any squatters before his occupation.

12 .It is trite that for the claim of adverse possession to succeed, an Applicant ought to establish that they have been in continued occupation of the suit property for 12 years in an open continuous and uninterrupted manner among other criteria. See Mombasa Teachers Co-operative Savings & Credit Society Limited v Robert Muhambi Katana & 15 others [2018]) eKLR.

13 .In my view the presence of the land sale agreement is a piece of evidence that would be an important piece of information in this discourse and is relevant to the issues in controversy. While I’m aware our judicial system is adversarial, the provisions of section 173[1] of the Evidence Act on the extended power of the court to obtain proper evidence cannot be ignored. I would not have hesitated to invoke the provision for the ends of justice to be met.

14 .In the end, having considered the application and the response through the grounds opposing the same, the court is satisfied that the Applicant has succeeded in persuading the court that she is entitled to be furnished with the document she seeks as the same is relevant to the matters in question in this suit. The requirements in Section 69 of the Evidence Act have been satisfied.

15 .On the application to further amend the Originating Summons herein, the power to grant orders for amendment is in order 8 Rule 1. The wording of the said provisions are as follows:“Order 8, rule 1. 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.Order 8, rule 3. 3.An amendment to correct the name of a party may be allowed under sub rule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.Order 8, rule 5. (5)An amendment may be allowed under sub rule (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.

16Additionally the principles for consideration in an application for amendment of pleadings are set out in the Court of Appeal decision of Ochieng and Others Vs First National Bank of Chicago Civil Appeal Number 147 of 1991. They are as follows:a.the power of the court to allow amendments is intended to determine the true substantive merits of the case;b.the amendments should be timeously applied for;c.power to amend can be exercised by the court at any stage of the proceedings;d.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.e.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 limitations Act subject however to powers of the court to still allow an amendment notwithstanding the expiry of current period of limitation.

17. The Applicant seeks to have the 1st Defendant added as a party to the suit being the current registered owner of the suit property. The Applicant states that after due diligence she has established that the claim for adverse possession should be made against the registered proprietor of the suit property. In order for a just finding to be made by the court and on merit, it is proper that the right party is sued. I note that the Defendant has been inconvenienced though this can be remedied by granting thrown away costs to them.

18. Consequently, the Application dated 7/6/2024 is allowed and the following orders issue;-1. the Applicant is at liberty to amend the Originating Summons as per the annexed draft and upon payment of the requisite filing fees as may be required.2. The costs as to 1) above shall be to the 1st Defendant.3. The 1st Respondent is hereby ordered to produce and serve the Applicant certified copies of the document sought in the Notice to produce dated 7/6/2024 within fourteen (14) days from the date of this Ruling.

Orders accordingly.

RULING DATED SIGNED AND DELIVERED THIS 11 DAY OF DECEMBER 2024………………………………A E DENAJUDGENo appearance for PlaintiffMs. Mukabane for 1st DefendantNo appearance for 2nd and 3rd DefendantDisii Daniel – Court Assistant