[2025] KEELC 500 (KLR)

Rahimkhan & another v County Government of Kwale & 5 others (Environment & Land Case 4 of 2024) [2025] KEELC 500 (KLR) (13 February 2025) (Ruling)

Neutral citation: [2025] KEELC 500 (KLR)

Republic of Kenya

In the Environment and Land Court at Kwale

Environment & Land Case 4 of 2024

AE Dena, J

February 13, 2025

Between

Adbulkadir Ahmed Rahimkhan

1st Plaintiff

Jabeen Manan

2nd Plaintiff

and

County Government of Kwale

1st Defendant

Land Registrar, Mombasa

2nd Defendant

The National Land Commission

3rd Defendant

The Director of Surveys

4th Defendant

The Director of Physical Planning

5th Defendant

County Executive Committee Member, Lands Natural Resources and Urban Planning, County Government of Kwale

6th Defendant

Ruling

1This ruling is the subject of the application dated 6th May 2024 by the 1st and 6th Defendants being the County Government of Kwale and its County Executive Committee Member, Lands Natural Resources and Urban Planning respectively. It seeks the following orders; -a.Spentb.The 1st and 6th Defendants be and are hereby granted leave of Court to amend their Counterclaim dated 16th June 2017 in terms of the Draft Further Amended Statement of Defence and Counterclaim attached hereto.c.For case management purposes, this suit be and is hereby consolidated with Kwale ELC Court Case No. 141 of 2021 [Formerly Mombasa ELC No. 135 of 2020] Juma Kanga & 299 Others versus Abdulkadir Rahimkhan & 9 Others.d.Pursuant to prayer c above, the consolidated suits be heard and determined together.e.The cost of this Application be in the cause.

2. The application is based on the grounds on its face and the Supporting Affidavit of Kisiwa Mohamed Koja dated 06/05/2024 which I will come to latter.

Background 3. Initially the Applicants herein had responded to the main suit by way of Defence and counterclaim dated 16/06/2017. However the counterclaim was struck out by Justice Sila Munyao vide a ruling delivered on 12/02/2020 pursuant to an application dated 21/01/2020. The said application sought to have the Plaintiffs suit be marked as withdrawn on the grounds that the Plaintiffs lease had been renewed by the 2nd and 3rd Defendants during the course of the proceedings. The Plaintiffs had been issued with title thus the suit was overtaken by events. The 1st and 6th Defendants proffered an appeal against the ruling striking out their counterclaim. The appeal was allowed by the judgement of the Court of Appeal delivered on 17/03/2023. The counterclaim was reinstated for hearing.

4. The court notes that the judgement of the Court of Appeal made observations touching on the 1st and 6th Defendants intimation to the trial court that they intended to amend the counterclaim following the withdrawal of the Plaintiffs suit and they would then prosecute the counterclaim. The trial judge proceeded to suo motto struck it out. The Court of Appeal made a finding that the learned trial court judge ought to have considered whether the intended amendment would breathe life into the counterclaim.

5. It is against the foregoing background that the first order for amendment of the counterclaim is sought. The Draft Further Amended Statement of Defence and Counterclaim is attached to the application.

6. But before I get into the review of the application, I find it necessary to at this juncture list the cases that are pending before the ELC in relation to the suit property Land Reference Number 4659 (Original Number3855/19). The suits are as follows;-1. Kwale ELC Court Case No. 141 of 2021 [Formerly Mombasa ELC No. 135 of 2020] Juma Kanga & 299 Others versus Abdulkadir Rahimkhan & 9 Others2. Kwale ELC Case No. E004 of 2022. Fred Abuga Onsongo and Jimmy Sausi & Fatuma Mohamed Haji Vs Jabeen Mariam Khan , Narriman Khan and 7 Others3. ELCC 168 of 2021 Jabeen Manan & Abdulkadir Ahemdkhan Vs. Estate of Alikhan Rahimkhan, Estate of Abdullakhan Rahimkhan, Estate of Abdulhamid Rahimkhan, Hawabai Daugher of Juma & Land Registrar Mombasa.4. Mombasa ELC case No. 137 of 2017 Abdulkadir Rahimkhan & Jabeen Manan Vs. County Government of Kwale, Land Registrar Mombasa, National Land Commission, Director of Surveys, Director of Physical Planning & County Executive Committee Member, Lands Natural Resources And Urban Planning, County Government of Kwale. This is the suit under which the Applicants raised the counterclaim, the subject of this application.

7The suits above have not yet been consolidated however the court has been managing them concurrently to ensure all the parties are involved and secure their interests. Thus, when the present application was filed parties were at liberty to indicate their positions on the application and which they did. Ms.Lugo Holding the brief of Mr. Bwire for the Plaintiff in Kwale ELC Court Case No. 141 of 2021 informed the court on 8/5/24 that they would not oppose the application herein provided there was corresponding leave to amend pleadings. Mr. Chege Holding the brief of Mr. Matende for the 1st & 2nd Defendants in Kwale ELC Court Case No. 141 of 2021 and the Plaintiffs in 3) above informed the court they would not oppose the application. Ms. Otunga for the 1st to 7th Defendant in Kwale ELC Court Case No. 141 of 2021 sought for time to peruse the application vis a vis the pleading in case 137 of 2017 which she was not aware of and decide whether to oppose the application or not. I granted time for any party wishing to oppose the application to file their responses and gave directions on the disposal of the application by way of written submissions. Ms Otunga did not respond to the application. On 22/07/24 Ms. Opio State Counsel informed the court they would not object to the application for consolidation. The Plaintiffs in suit number 2) above intimated they would be opposing the application. I later reviewed these directions following the filing of the preliminary objection by Mr. Sausi to enable both the application and PO to be heard concurrently by way of written submissions.

8From the foregoing the contest was between the applicants and the Plaintiffs in Kwale ELC Case No. E004 of 2022.

Objections Raised by the Respondent Plaintiffs in Kwale ELC Case No. E004 of 2022. 9The PO raised by the Plaintiffs above is dated 26th July, 2024 and is premised on grounds that the amendments proposed offend Order 7 Rule 8, 11 and 12, Order 8 Rule 5 of the Civil Procedure Act, Laws of Kenya and Article 50[1] of the Constitution. It is also contended that the proposed amendments will immensely affect and prejudice the Plaintiffs in Kwale ELC Case No. E004 of 2022.

10The application and PO were canvassed by way of written submissions which Parties filed and exchanged.

Applicants Submissions 11. The Applicants identified the following issues for determination by the court; -i.Whether the Applicant has given sufficient reasons for the Court to exercise its discretion and allow the amendment.ii.Whether the Court should allow the consolidation of this suit with Kwale ELC Court Case No. 141 of 2021 [Formerly Mombasa ELC No. 135 of 2020] Juma Kanga & 299 Others versus Abdulkadir Rahimkhan & 9 Others.iii.Whether the proposed amendments if allowed offend the provisions of Order 7 Rule 8, 11 and 12, Order 8 Rule 5 of the Civil Procedure Act, Laws of Kenya and Article 50[1] of the Constitution.iv.Whether the Plaintiff’s in Kwale ELC Case No. E004 of 2022; Fred Abuga Onsongo & 2 Others vs Jabeen Mariam & 8 Others will be prejudiced if the Court grants the leave sought.v.What reliefs should the Court grant?

12. It is submitted that the proposed amendments are necessary to enable the Court render substantive justice to the parties concerned in tandem with the provisions of Order 8 Rule 5 (1) of the Civil Procedure Rules. The court is also referred to the case of Central Kenya Ltd vs Trust Bank Ltd, Trust Finance Ltd, Floriculture International Ltd, First National Finance Ltd & Registrar Of Titles [2000] Keca 367 (KLR) where the Court of Appeal emphasized that applications for leave to amend should be freely allowed and at any stage of the proceedings, provided that the amendment will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs.

13. The applicants further submit that that there shall be no prejudice to be suffered by any of the other parties as they shall equally be able to respond to the Amendments. Rehashing the events leading to the reinstatement of the counterclaim and the dictum of the court of appeal which I have already highlighted hereinbefore it is also submitted application for leave to amend was filed as soon as was reasonably possible once the Counterclaim was reinstated and the suit file transferred to Kwale ELC court for determination.

14. On the proposal for consolidation of the present suit with Kwale ELC Court Case No. 141 of 2021 [Formerly Mombasa ELC No. 135 of 2020] Juma Kanga & 299 Others Vs Abdulkadir Rahimkhan & 9 Others the applicant urges that they are named as the 10th Defendant therein. That the two suits relate to the same subject matter being Land Reference Number 4659 (Original Number 3855/19). That consolidation would be necessary to save on precious judicial time and resources. Reliance was placed in the case of Court in Arnold Kipkirui Langat v Atticon Limited & 7 others [2021] eKLR, Law Society of Kenya vs Center for Human Rights & Democracy & 12 Others [2014] eKLR and Nyati Security Guards & Services Ltd vs Municipal Council of Mombasa [2000] eKLR.

15. Highlighting the provisions of Order 7 Rule 8, 11 and 12, Order 8 Rule 5 of the Civil Procedure Act, Laws of Kenya and Article 50[1] of the Constitution, it is submitted that while the concerns of the Plaintiffs in Kwale ELC Case No. E004 of 2022 is that they are not named as parties in the draft Further Amended Statement of Defense and Counterclaim, perhaps based on the claim they have against the 1st and 2nd Plaintiff together with others who are the registered proprietors of the suit property and, who as it appears from the claim in Kwale ELC Case No. E004 of 2022 are named as Defendants; it was submitted that the court invokes its discretion and order that the draft Further Amended Statement of Defense and Counterclaim be further amended accordingly so as to take into account any other relevant parties that may be ultimately affected by the Orders sought in the Amended Counterclaim should leave be granted to amend.

Submissions of the Plaintiffs in Kwale ELC Case No. E004 of 2022 16. It is submitted that there is no draft counterclaim and if there is, the same offends Order 7 rule 8 of the Civil Procedure rules since the title of the defence lacks a further title similar to the title in a plaint. That the counterclaim has no cause of action to the specific Defendants. The relief sought is not against anybody but, directed to L.R No 4659 (Orig No. 3855/19) which is a suit property and not a party before Court and orders granted will be unenforceable and in vain.

17. It is contended that the 1st and 6th Defendants have never filed an original counterclaim warranting them to seek leave to be allowed to amend as prayed. It is further urged that the counterclaim being a plaint and in the present circumstances does not raise triable issues, cause of action, the prejudices to be suffered or already and the breach thereof.

18. Citing the provisions of Section 13(1) of the Land Act 2012 No. 6 of 2012 on lessee pre-emptive right to allocation it is submitted that the Defendants in ELC No. E004 of 2022 are Kenyans and the 1st & 6th Defendants have not stated the purpose for which they would have utilized the suit property if indeed the same had reverted to them.

19. That the leasehold herein was renewed in accordance with section 3 of the Land Act and any claim by the 1st and 6th Defendants in so far as the L.R No. 3855/19 is concerned is overtaken by events should be dismissed Sua Sponte as it is of no basis at all.

20. That the 1st & 6th Defendants are seeking mandatory injunctions against all the Plaintiffs without considering the time, monetary funds utilized by the Plaintiffs in ELC/E004/2022 to have the lease legally renewed. If prayer 2 & 3 are allowed then Plaintiffs in ELC/E004/2022 will be shut out of the main arena.

21. On consolidation it is stated that the 1st & 6th Defendants have not made any refence to what will happen to the other suits after consolidating ELC No. 141/2021 and ELC No. 135/2020, if they will be heard separately or not including ELC No. E04 of 2024 in which the Plaintiffs are seeking to have individual shares from the mother title. Further that the 1st & 6th Defendants have not demonstrated the efficiency, significance and importance of consolidating the three (3) cases before Court.

22. The court is urged to dismiss the application.

Analysis And Determination 23. I have considered the application, the objections thereto and the submissions of the parties. I think the main issue for determination is whether the application dated 6th May 2024 is merited. I have noted the issues identified by the applicants and it is my view the same including the objections raised by the Plaintiffs in ELC No. E04 of 2024 will be answered within the courts consideration of whether the application is merited.

24. The application is brought substantively under the provisions of order 1 Rule 10(2) and order 8 Rule 3. Order 1 Rule 10(2) is on substitution and addition of parties and provides as follows; -“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”

25. Order 8 Rule 3 of the Civil Procedure Rules provide for the amendment of pleadings as follows; -Amendment of pleading with leave [Order 8, rule 3. ](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.(2)Where an application to the court for leave to make an amendment such as is mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just so to do.(3)An amendment to correct the name of a party may be allowed under subrule (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.(4)An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which the party will sue is one in which at the date of filing of the plaint or counterclaim, he could have sued.(5)An amendment may be allowed under subrule (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.

26. The Court of Appeal in Central Kenya Ltd Versus Trust Bank Limited & 4 Others [2000] eKLR held that the policy of the law is that amendments to pleadings are to be freely allowed unless by allowing them the opposite side would be prejudiced or suffer injustice which cannot properly be compensated for in costs.

27. Before I delve into the substance of the merits of the application, I must address the objection raised by the Plaintiffs in in ELC No. E04 of 2024. I must note that the said Plaintiffs are not parties to the suit within which the proposed amendments are proposed. I have already highlighted elsewhere in this judgement that there are a number of suits touching on the subject suit property. Though these suits have not been consolidated and how the court has been managing them. The objector states that what is on record is an already amended irregular counterclaim on the 16th June, 2017. That while paragraphs are amended none has been cancelled. That the 1st & 6th Defendants should have sought leave to file a counterclaim out of time as opposed to lying to the Court that there was a counterclaim to be amended when there is none.

28. My review of the proceedings and pleadings in ELC 137 of 2017 now ELCLC No. 4 of 2024 is that the 1st and 6th Defendants filed on 19/06/2017 an Amended Defence & Counterclaim amended on 16/06/2017. The existence of the said counterclaim has never been contested as between the parties in the said counterclaim even at the stage when the matter was before the Court of Appeal. Indeed, I have come across a robust Reply to the 1st and 6th Defendants Amended Defence and Defence to Counterclaim dated 20th July 2017. I think to find that there is no counterclaim to amend will be misleading.

29. Do the amendments offend the provisions of Order 7 Rule 8, 11 and 12, Order 8 Rule 5 of the Civil Procedure Act, Laws of Kenya and Article 50[1] of the Constitution as contended? I find it necessary to reproduce verbatim the said provisions; -Order 7 Rule 8 provides as follows;Title of counterclaimWhere a defendant by his defence sets up any counterclaim which raises questions between himself and the plaintiff, together with any other person or persons, he shall add to the title of his defence a further title similar to the title in a plaint, setting forth the names of all persons who, if such counterclaim were to be enforced by cross-action, would be defendants to such cross-action, and shall deliver to the court his defence for service on such of them as are parties to the action together with his defence for service on the plaintiff within the period within which he is required to file his defence.Order 7 Rule 11 provides as follows;Reply to counterclaimAny person named in a defence as a party to a counterclaim thereby made may, unless some other or further order is made by the court, deliver a reply within fifteen days after service upon him of the counterclaim and shall serve a copy thereof on all parties to the suit.Order 7 Rule 12 provides as follows;Exclusion of counterclaimWhere a defendant sets up a counterclaim, if the plaintiff or any other person named in the manner aforesaid as party to such counterclaim contends that the claim thereby raised ought not to be disposed of by way of counterclaim, but in an independent suit, he may at any time before reply, apply to the court for an order that such counterclaim may be excluded, and the court may, on the hearing of such application, make such order as shall be just.Order 8 Rule 5 provides as follows;General power to amend[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.

30. I will not set out verbatim the provisions of Article 50 of the Constitution of Kenya. It is trite that the same provides for the Right to a fair hearing.

31. I have looked at the proposed Further Amended Defence & Counterclaim attached to the present application as uploaded in the CTS vis a vis the amendments made on 16/06/2017. The title ‘Further Amended Defence & Counterclaim’ has been underlined in green ink; the title Counterclaim has been amended by the addition of the word ‘Amended’ underlined in green so as to read ‘Amended Counterclaim.’ The Parties to the proposed Further Amended Defence & Counterclaim are now clearly indicated as the 1st and 6th Defendants as Plaintiffs and the Plaintiffs in the previous suit are now named as the Defendants and now retaining only three Defendants. These are also underlined in green. On the substantive amendments the court has seen the inclusion of paragraphs 39 to 47 containing the new amendments which bring out the proposed facts, all underlined in green. What is being abandoned that is paragraphs 39 to 50 in the previous pleading has been deleted. The prayers have also been equally amended. As a court I did not see anything of concern to warrant the observations and objections raised. The proposed amendments have come out clearly. Moreover, what is attached is just but a mere draft for consideration.

32. In addition to the above my understanding of the Plaintiffs objection is that they cannot respond to the Counterclaim for the reasons that they are an affected party who entered into an agreement to facilitate the renewal of the lease under which they spent time and money and are not a party to the counterclaim. My perusal of the Plaint in E04 of 24 reveals further that the compensation for their services is portions of the suit property. However, whether this is sound is a matter for consideration at the full trial. The said Plaintiffs are also being condemned by the Counter claimers for irregularly obtaining the renewal. In my view their concerns and apprehension are well founded and real. I have already stated elsewhere in this ruling that the Plaintiffs in ELC No. E04 of 2024 are not parties to the suit within which the proposed amendments are floated. They are indeed entitled to defend their position in the suit commenced by way of counterclaim. Is all lost for them, it is not as what is before the court is a mere draft and can be further amended to address the concerns raised. Indeed, this can be done under the provisions of Order 1 Rule 10(2) and Order 8 Rule 4.

33. Having noted the proposed amendments, I will further consider the merits of the proposed amendments guided by the provisions of the law cited as well as caselaw. The emerging question would then be whether the proposed amendments will prejudice or cause injustice to the opposite side. Then even if there would be such injustice would it be compensable by way of costs. But it is also important to look at the reasons advanced by the applicant for seeking such leave to make the proposed amendments. Ground 17 of the Motion is to the effect that the applicants want to bring out all issues in controversy between the parties for the courts interrogation and to seek appropriate reliefs against the Plaintiffs in the original suit and the Land Registrar Mombasa.

34. Paragraph 17 of the motion further enumerates the basis for these amendments. These I noted highlighted the facts surrounding the renewal and why the Applicants are aggrieved. These are further reiterated in the supporting affidavit of Kisiwa Mohamed Koja sworn on 6/5/24 and specifically paragraphs 19 -20. Having understood the gravamen of the amendments I would agree that the same has brought out the issues in controversy which will enable the court to render justice from an informed point of view. Infact they have infused life into the counterclaim.

35. As to whether the same will be prejudicial to the opposite parties, my answer would be I see no prejudice to be occasioned firstly to the parties named as Defendants to the counterclaim, provided that they are properly served and respond to the amendments appropriately which assures them of their right to access to justice and hearing before the court. I have already addressed the concerns raised by the Plaintiffs in ELC No. E04 of 2024 and how these may be remedied.

36. Before court is also a prayer to consolidate for case management purposes, this suit with Kwale ELC Court Case No. 141 of 2021 [Formerly Mombasa ELC No. 135 of 2020] Juma Kanga & 299 Others versus Abdulkadir Rahimkhan & 9 Others. The principles to consider while consolidating suits were amply set out in Nairobi ELC Suit No. 1000 of 2012 Joseph Okoyo vs Edwin Dickson Wasunna (2014) eKLR, which cited with approval Mombasa HCCC No. 992 of 1994 Nyati Security Guards and Services vs Municipal Council of Mombasa wherein the factors were enumerated as follows; -“the situations in which consolidation can be ordered include where there are two or more suits or matters pending in the same court where: -(a)Some common question of law or fact arises in both or all of them; or(b)The rights or relief claimed in them are in respect of, or arise out of the same transaction or series of transactions, or(c)For some other reason it is desirable to make an order for consolidating them.”

37. The grounds upon which the consolidation is sought are that the suits relate to the same subject matter, that the County Government of Kwale has been named as the 10th Defendant in ELC Court Case No. 141 of 2021 [Formerly Mombasa ELC No. 135 of 2020] and to save on precious judicial time. Looking at the two suits I would not hesitate to consolidate them as my review of both of them has met the threshold set out in the above decision. Indeed the consolidation of suits is a case management issue.

38. I have already outlined hereinbefore the other suits pending before court that stem from the same subject matter. The application before me relates only to the consolidation of the two matters herein, yet there are other matters touching on the same subject matter. I have already noted that most of the counsels appearing in the other matters did not object to the consolidation herein. But the fate of the other suits as they relate to consolidation need to be known and while the court has wide discretion to order consolidation suo moto as it may deem appropriate under the provisions of Order 11 of the Civil Procedure Rules I think the present forum would not be the right one to make such orders given the circumstances. I think the proper way would be to further convene another case management forum where the consolidation can be considered wholesomely under the provisions of Order 11 Rule3 (I) (h) of the Civil Procedure Rules.

39. Further having earlier observed that the concerns raised by the Plaintiffs in in ELC No. E04 of 2024 with regard to defending their interest in the counterclaim, then it will be imperative that further appropriate amendments are undertaken. This proposal was also advanced by the applicants in their submission. It would therefore be important that this is dealt with first before the consolidation of all the suits herein can be considered.

40. The upshot of the foregoing therefore is that the application dated 6th May 2024 partly succeeds and is hereby disposed in the following terms; -1. That the applicant is hereby granted leave to further amend the Counterclaim accordingly so as to take into account any other relevant parties that may ultimately be affected by the Orders sought in the Amended Counterclaim.2. The amendments in 1) above shall be effected and served upon the affected parties within 14 days of the date of this ruling.3. That the consolidation of the suits shall further be considered as part of the case Management conference under the provisions of Order 114. Costs shall be in the course.5. The suits herein shall be mentioned on 19/02/2025It is so ordered.

DATED, SIGNED AND DELIVERED ELECTRONICALLY VIA CTS THIS 13TH DAY OF FEBRUARY 2025. HON. A.E DENAJUDGE13/2/2025