[2021] KEHC 3145 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MILIMANI

ELC SUIT NO. 788 OF 2015

PATRICK KABUE MUCHENE................................................ APPLICANT

-VERSUS-

HANNAH WANGARI KINUTHIA ............................... 1ST RESPONDENT

SAMUEL MWAURA FELIX KARIUKI........................2ND RESPONDENT

RULING

(Chamber Summons Application Dated the 26th July, 2021)

Background

1. The Application for determination before this Honourable Court is the Applicant’s Chamber Summons dated and filed on the 26th July, 2021 under certificate of urgency seeking for Orders that:-

1) Spent

2) THAT leave be granted to the Applicant to amend his pleadings to include MICHAEL MUHIA NGAE as 3rd Defendant in terms of the draft further amended originating summons annexed thereto.

3) THAT costs of this application be provided for.

2. The Application is supported by the Affidavit of the Applicant himself one, Patrick Kabue Muchene, deponed on the 23rd July, 2021 and premised on the grounds, inter alia;

a) That the claim by the Applicant is for declaration of ownership by adverse possession of parcel of land measuring 1 acre, pursuant to a sale agreement between the Applicant and the 1st Respondent dated the 20th February, 1999.

b) That after the Applicant took possession of the aforesaid parcel of land, the Respondent caused survey of several of her parcels of land, including the aforesaid 1 acre and subdivided it into two portions now partly comprised in LR. No. 164/73 to the extent of 0. 2238 hectare and transferred it to the 2nd Respondent, and the other part, now comprised in LR. No. 164/72 to the extent of 0. 180 hectare and transferred it to MICHAEL MUHIA NGAE the proposed 3rd Defendant as shown in the Surveyor’s Report dated the 11th September, 2020 marked as annexture “ PKM 3” in the Supporting Affidavit.

c) That it is thus necessary to join MICHAEL MUHIA NGAE as the 3rd Defendant, to enable the court to effectually and completely adjudicate upon and settle all questions involved in the Originating Summons as amended in the proposed further amendment.

d) That it is fair and just that the Applicant be allowed to amend his application to effectively prosecute his claim against the Respondents, and intended 3rd Defendant who stand to suffer no prejudice if the amendment is allowed.

3. The 1st Respondent never filed any reply in opposition to the Application neither did he attend Court on the date that the application was scheduled for hearing despite having been served with the application.

4. The 2nd Respondent opposed the aforesaid Application by way of a Replying Affidavit sworn on the 30th September, 2021 by SAMUEL MWAURA FELIX KARIUKI and filed on the same day.

5. The 2nd Respondent contends that that the Application is fatally defective and incurable given that the Applicant has filed a Chamber Summons Application instead of a Notice of Motion Application contrary to the legal provisions hence the entire Application fails. He further avers that the Applicant is guilty of laches and indolence since the orders being sought were never sought during the Pre-Trial conferences. In addition, that the matter has been set down for hearing of the main suit on Five (5) diverse dates of which Four (4) were adjourned at the instance of the Applicant and the fifth one being that slated for 18th October, 2021 which evidently the Applicant intends to adjourn by virtue of the instant Application. Hence it has become the routine, pattern and habit of the Applicant to scuttle, frustrate and delay the hearing of the main suit evident from his conduct.

6. That despite being granted leave by the Court on 3rd April, 2017, which amendment was done on 22nd June, 2017, the Applicant ought to have seized the opportunity and effected the intended amendments then. That the Application has been filed 4 years after amending the initial pleadings and 6 years after filing the suit yet no reason or explanation has been preferred by the Applicant as to the said inordinate, inexcusable and unreasonable delay.

7. The 2nd Respondent further contends that, whereas the Applicant has sought leave to amend his pleadings limited to enjoining one Michael Muhia Ngae as the intended 3rd Defendant, the draft amended pleadings suggest otherwise given that the proposed amendments have gone beyond the scope of enjoining the intended 3rd Defendant to the degree of potentially altering the whole character of the case and that the proposed amendments constitute a new suit against the proposed 3rd Defendant and will thereby occasion a prejudice to him.

8. The Court, informed by the urgency of the matter allowed the Application to be dispensed with by way of oral submissions. Both Advocates, (for the Applicant and for the 2nd Respondent respectively) reiterated the averments contained in their respective Affidavits backing them up with relevant legal provisions.

ISSUES FOR DETERMINATION

9. In this Court’s opinion, the issues for determination are as follows;-

A. Whether the Application is incurably defective.

B. Whether the intended 3rd Defendant is a necessary party to the suit.

A. WHETHER THE APPLICATION IS INCURABLY DEFECTIVE.

10. In his replying affidavit, the 2nd Respondent termed the Application as incurably defective in form. The 2nd Respondent’s Advocate expressed the view that the Applicant ought to have filed a Notice of Motion Application rather than a Chamber Summons.

11. The Applicant, through his Advocate in his response maintained that his application was properly before Court since Order 1 rule 25 is clear that ‘Applications under rules 10 and 19 may be made orally in Court or by summons in chamber.’

12. The Application before the Court is seeking to add the intended 3rd Defendant as a party in the suit. It is for all intents and purposes an application under Order 1 rule 10. It states so on the face of it. The proposed amendment is consequential to the addition of the intended 3rd Defendant.

13. The Court agrees with the submission of the Applicant that it was properly brought before the Court as a Chamber Summons and not a Notice of Motion. Rule 25 is explicit about bringing an application under rule 10 by way of a chamber summons. The provision in order 51 of the Civil Procedure Rules applies where the relevant order is not specific on the mode of the application.

14. In any event, to my mind, this would be a mere procedural defect that would not render the application incurably defective. I say so, bearing in mind the provisions of Article 159 (d) of the Constitution, that justice shall be administered without undue regard to procedural technicalities.

B. WHETHER THE INTENDED 3 RD DEFENDANT IS A NECESSARY PARTY TO THE SUIT

15. The Applicant justifies the need to enjoin the proposed 3rd Defendant on the basis that he is a necessary party to help the Court determine the real questions in issue in this suit. The Advocate for the Applicant submitted that he took over the case on behalf of the Applicant from a previous Advocate. Upon taking over, he evaluated the Applicant’s case and out of his findings caused an investigation by a surveyor that has informed his current application to seek a further amendment of the Originating Summons (O.S). Part of the land the subject-matter of this suit, is currently registered in the name of the proposed 3rd Defendant therefore making him a necessary party to the suit.

16. The 2nd Respondent’s submission was that the Applicant is guilty of laches - inordinate delay, yet he has not sufficiently explained the delay in bringing the application now before Court. The 2nd Respondent was categorical that the application was devoid of merit and was just an attempt to scuttle the hearing of the main suit. He prays for its dismissal.

17. The Court of Appeal in Central Kenya Ltd Vs Trust Bank Ltd [2002] 2 EA 365 held that amendments of pleadings and joinder of parties were aimed at allowing a litigant to plead the whole of the claim he was entitled to make in respect of his cause of action. The Court was of the view that a party should be allowed to make such amendments as are necessary for determining the real issue in controversy and to avoid a multiplicity of suits provided that;-

i. there has been no undue delay,

ii. no new or inconsistent cause of action was introduced and

iii. the amendment could be allowed without injustice to the other party(s) that could not properly be compensated in costs.

18. This Court is of the view that the major considerations whether an amendment or a joinder is to be allowed are whether the amendments or joinder were necessary for the determination of the matter in issue in the suit and whether the delay was likely to prejudice the other party(s) beyond compensation by way of costs. I agree with the Court of Appeal decision cited herein.

19. Further Rule 3 of Order 1 of the Civil Procedure Rules provides that any person against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions may be joined as a defendant.

20. A party may be allowed by the Court to amend the pleadings any time before trial for the purpose of determining the real question in controversy.

21. In the instant case, I do find that the Applicant has reasonably explained the delay in filing the application. Moreover, the Applicant has demonstrated that it is necessary that the proposed 3rd Defendant be enjoined in the suit.

22. Accordingly, the Application is allowed as prayed with costs being granted to the 2nd Respondent.

23. The Court will proceed to give strict timelines for compliance by the parties to pave way for the hearing of the main suit.

It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF OCTOBER, 2021.

M.D. MWANGI

JUDGE

In the Virtual Presence of :-

Njoroge Baiya for the Applicant

None appearance for the 1st Respondent

Mr Ogunye for the 2nd Respondent

Court Assistant: Hilda

M.D. MWANGI

JUDGE