[2023] KEELC 16166 (KLR)

Njoroge v Kibe (Environment & Land Case 258 of 2012) [2023] KEELC 16166 (KLR) (6 March 2023) (Ruling)

Neutral citation: [2023] KEELC 16166 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment & Land Case 258 of 2012

FM Njoroge, J

March 6, 2023

Between

Kairu Njoroge

Plaintiff

and

Ann Muthoni Kibe

Defendant

Ruling

1. This is a ruling in respect of the plaintiff’s notice of motion dated 28/12/2022 which seeks the following orders:a.That this honourable court be pleased to grant leave to the plaintiff to amend the plaint.b.That the annexed draft further amended plaint be deemed as fully filed upon payment of the requisite court fee.c.That the costs of this application be in the cause.

2. The application is supported by the affidavit sworn by David Nyamweya Mongeri, advocate for the plaintiff. He deposed that the amendment is to substitute the defendant and that no prejudice will be suffered by the defendants if the plaint is amended.

Response 3. The defendant filed her grounds of opposition dated February 9, 2023 on the following grounds:1. That amendment of the plaint herein is primarily meant to make one Ann Muthoni Kibe the plaintiff in the place of the deceased defendant, one Simon Kibe. Substitution of party proceeds on the basis that the incoming party is the legal representative of the deceased party.2. That leave to substitute and consequently the application for amendment proceeded on the factual premise that Ann Muthoni Kibe is the legal representative of the estate of the late Simon Kibe, the deceased defendant. The applicant has not demonstrated that the said Ann Muthoni Kibe is the legal representative of the estate of the late Simon Kibe limited to these proceedings.3. That under section 82 of the Law of Succession Act, powers to represent the estate of the deceased vest in the personal representative. The applicant has not attached a grant of letters of administration ad litem to demonstrate that the proposed defendant is a personal representative.4. That as a consequence of the foregoing any decree issued against the proposed defendant cannot bind the estate of the deceased defendant, Simon Kibe. This application is therefore incompetent and it should be struck out and/or dismissed with costs.

Submissions 4. The plaintiff/applicant filed his submissions dated 27/01/2023 on 31/01/2023 where he relied on Order 8 Rule 3 and 5 of the Civil Procedure Rules. He submitted that he seeks to substitute the defendant and seeks for injunctive and eviction orders as well as removal of caution. It relied on the case of Institute for Social Accountability & anothervParliament of Kenya & 3others[2014] eKLR and the Court of Appeal case in Elijah Kipngeno Arap BiivKenya Commercial Bank Limited[2013] eKLR and submitted that the suit had been instituted in 2012 while the instant application was brought in 2022. He further submitted that the matter, being a land case had been recently transferred to this court. The plaintiff also cited the case of Central Kenya LimitedvTrust Bank Limited (2000) and urged the court to allow the said prayer for amendment of the plaint.

Analysis And Determination 5. This court has considered the Application, and the main issue for determination is whether the plaintiff should be granted leave to amend the plaint.

6. Order 8, Rule 3 (1) of the Civil Procedure Rulesprovides as follows:-“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”

7. The Court of Appeal in case of Coffee Board of Kenya V Thika Coffee Mills Limited & 2others, CA No. 94 of 2003 [2014] eKLR the court held as follows:i)All amendments should be allowed which are necessary for determination of the real issues in controversy in the suit;ii)The proposed amendment should not alter and be a substitute of the cause of action on the basis of which the original list was raised;iii)Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts would not be allowed to be incorporated by means of amendment;iv)Proposed amendment should not cause prejudice to the other side which cannot be compensated by means of costs;v)Amendment of a claim or relief barred by time should not be allowed;vi)No amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time;vii)No party should suffer on account of the technicalities of law and the amendment should be allowed to minimize the litigation between the parties;viii)The delay in filing the petitions for amendment of the pleadings should be properly compensated by costs;ix)Error or mistake, which is not fraudulent, should not be made the ground for rejecting the application for amendment of pleadings.”

8. This court has carefully perused the annexed draft plaint and notes that the intended amendments touch on the prayers being sought in the plaint. The plaintiff has amended his prayers and also substituted the defendant with Ann Muthoni Kibe. I am of the view that the amendment of the defendant party is largely aimed at clarifying or correcting the facts or description of parties since the court had earlier allowed substitution of the defendant.

9. I also find that the prayers incorporated into the amended plaint arise out of the same facts as those pleaded in the original plaint with no indication of new issues raised. The defendant in her grounds of opposition contends that the application is incompetent as the plaintiff did not attach a grant of letters of administration ad litem.

10. This court had on 8/6/2022 ordered that the defendant Simon Kibe Mbugua (deceased) be substituted by Ann Muthoni Kibe. I hereby note that the main complaint of the defendant is that the applicant is not the legal representative of the deceased. Upon observing that the application that birthed the substitution orders was supported by a death certificate and no grant of administration to the deceased’s Estate, this Court now deems the motion dated 28/12/2022 as incapable of being granted until the applicant has obtained legal capacity to bring the same. The motion dated 28/12/2022 is therefore dismissed with costs. Parties shall attend a mention on 22/3/2023 for directions regarding the orders which were issued on 8/6/2022 without any supporting grant being exhibited.

DATED, SIGNED AND DELIVERED AT NAKURU VIA ELECTRONIC MAIL ON THIS 6TH DAY OF MARCH 2023. MWANGI NJOROGEJUDGE, ELC, NAKURU.