[2020] KEELC 3719 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KERICHO

E.L.C NO 80 OF 2013

RICHARD CHERUIYOT LANGAT.................................................................PLAINTIFF

VERSUS

TAPNYOBII MAIGA......................................................................................DEFENDANT

RULING

INTRODUCTION

1. The application for determination before me is essentially one of joinder, with the Plaintiff – RICHARD CHERUIYOT LANGAT – seeking to enjoin two parties – LAND REGISTRAR, BOMET COUNTY (2nd defendant) and FRANKLIN KIPLANGAT BETT (3rd defendant) – as new parties in the suit. The application is a motion on notice expressed to be brought under Sections 1A, 1B, 3, and 3A of Civil Procedure Act (Cap 21) Order 12 rule 7, Order 51 rule 1 of Civil Procedure Rules, 2010, Article 48 and 50 (1) of the Constitution of Kenya, 2010, and all other enabling law. The application is also generally about amendment as there are specific allegations made and reliefs sought against the intended 3rd defendant in the draft amended plaint that came with the application.

THE APPLICATION

2. The application has three prayers, with prayer 1, which seeks certification of the application as urgent already spent, while prayer 2 is seeking to enjoin two parties – FRANKLINE KIPLANGAT BETT and LAND REGISTRAR, BOMET COUNTY – as defendants. The third and final prayer seeks to have costs of the application awarded to the plaintiff.

3. The justification for the application is said to consist in the fact that the proposed 3rd defendant has moved to the disputed property and constructed both permanent and temporary structures; that the proposed 3rd defendant was even summoned by the court over the issue and he confirmed as much; that his joinder is necessary in order to determine the matter on merit; that the plaintiff stands to suffer loss and damage; that the plaintiff has a good case against the proposed 3rd defendant; and that the application is brought in good faith and in good time.

RESPONSE

4. The 1st defendant, who is actually the only defendant at this stage, opposed the application vide a replying affidavit filed on 15th July, 2019. According to him, the application is “frivolous, filed as an afterthought, bad in law…….a waste of court’s precious time…and filed in very bad faith…” Its aim was said to be “scuttling, frustrating and further delaying the hearing of the main suit.” And the plaintiff wants to cause delay because “he is afraid that the suit will fail”.

5. The proposed third defendant was said to have been listed as plaintiff’s witness and the witness statement of the witness is on record and was filed in September, 2013. The plaintiff was said to have even complained against the witness earlier and the witness was summoned by the court, which let him go after the plaintiff was unable to prove his allegations. The 1st defendant deposed further that he will “be greatly prejudiced should the plaintiff be allowed to further delay the hearing of this case which was filed in 2013 close to seven years ago, yet the hearing has never commenced, as the plaintiff fraudulently had himself registered as the proprietor of the suit property.” This court was asked to dismiss the application.

SUBMISSIONS

6. The application was canvassed by way of written submissions. The plaintiff’s submissions were filed on 3rd October, 2019. He submitted, interalia, that the law on which the application is anchored empowers the court to do justice without undue regard to procedural technicalities. The submissions then went on to highlight the salient aspects of both the application and the response made to it.

7. The court was then told that the applicable law is that amendment or joinder should be allowed to enable the court to determine the real issues in controversy; to avoid multiplicity of suits; and where there has been no undue delay. The court exercises its discretion while taking caution to ensure that no new or inconsistent cause of action is introduced; that no vested or accorded legal right is affected; and that no injustice is caused to the other side. The plaintiff was said to have demonstrated these requirements while the defendant has not.

8. To drive his point home, the plaintiff cited the cases of MARTIN WESULA MACHYO VS HOUSING FINANCE COMPANY OF KENYA LIMITED & ANOTHER:(2015) eKLR, CENTRAL BANK OF KENYA LIMITED VS TRUST BANK LIMITED (2000)2 EA 365, MUNGAI VS TEXCAL HOUSE SERVICE STATION(1999) eKLR and ELIJAH KIPNGENO ARAP BII VS KENYA COMMERCIAL BANK LIMITED (2013) eKLR, among others.

9. The 1st defendant submissions were filed on 21st October, 2019. He submitted that there is no cause of action against the party sought to be enjoined as it is the plaintiff himself who allowed that party to enter the land; that the proposed amendments are immaterial, even useless, and the plaintiff actually failed in an earlier attempt to drag the party to court. Further, the defendant submitted that he himself will be prejudiced because the proposed joinder or amendment will change the character of the suit. The court was asked to disallow the application.

ANALYSIS

10. I have considered the application, the response made, rival submissions and the case law cited. As the application is one of joinder and/or amendment of the pleadings, I have also had a look into the pleadings. Joinder of parties is governed by Order I, rule 10 (2) of the Civil Procedure Rules, 2010. It should be allowed in all situations where common questions of law or facts may arise. It may also be allowed where the subject matter is the same. For the court, it is essentially a matter of discretion and the principles normally considered are those mentioned by the applicant in his submissions. Sometimes, joinder can even be ordered by the court SUO MOTO.

11. The court would normally consider the function meant to be served by joinder. In order to do this, it considers whether the legal and factual issues arising in a matter can effectively be handled together. It also considers the possible relations of the parties to the issues. Where issues and parties overlap or become inseparably linked, joinder will normally be allowed so that the process of trial can be more efficient and fair. This helps the court avoid hearing the same facts or legal issues multiple times over. It also ensures that parties do not return to court separately for each of their legal disputes.

12. Joinder necessarily occasions amendments. And like in the case of joinder, the court has a wide discretion to allow amendment to determine the real question in dispute. The aim is always to do substantial justice. Amendment can be sought at any stage but within reasonable time. The only thing to consider is whether costs can compensate the other side. The circumstances under which joinder or amendments can be allowed are wide and varied and each case should depend on its own facts.

13. In all cases however, joinder or amendments should be sought in good faith. The court will decline to allow joinder or amendment if the end result will be abuse of the court process or, as pointed out by the 1st defendant, the proposed joinder or amendment is immaterial, useless or merely technical. It will also decline if allowing it will work serious injustice to the other side. But a caution needs to be sounded: an injury that can be compensated by way of costs is not treated as an injustice. The predisposing concern of the court should be to avoid multiplicity of proceedings and any joinder or amendment meant to avoid such multiplicity should be allowed.

14. The cases cited by the plaintiff to explain the legal position on the issue of joinder are generally illuminating and offer useful guidance. There are many other cases that offer useful insight concerning the applicable law. One such case is RUBINA AHMED & 3 OTHERS VS. GUARDIAN BANK LTD (2019)eKLR (CA NO. 203 of 2013, NAIROBI) where the Court of Appeal declined to interfere with the discretion of Mabeya-J (High Court) where he had judiciously exercised discretion on the issues of joinder and amendment. The other is that of LUCY NUNGARI NGIGE & OTHERS VS NATIONAL BANK OF KENYA & ANOTHER (2015)eKLR (HCC NO. 517 OF 2014, NAIROBI)where Gikonyo –J highlighted the applicable statutory law and applied it to allow an application for joinder.

15. It is necessary to try and appreciate the facts of this case before applying the law. The 1st defendant would have us believe that what the plaintiff is complaining about existed even at the time the plaintiff filed his case. In other words, the structures said to be on the site were allegedly put up by the proposed 3rd defendant with the permission of the plaintiff long ago. But my reading of the record does not seem to validate that position. The structures complained of were put up in 2019 and the plaintiff even complained to court. And when the proposed 3rd defendant came to court to explain, he didn’t deny existence of new structures; he merely said they were on a different parcel of land. The plaintiff says they are on his land.

16. The 1st defendant also espouses the position that the court cleared the proposed 3rd defendant of blame regarding the issue of the alleged new structures. That, again, is not the position. The court didn’t make up its mind one way or the other. It merely pointed the need for further investigations and suggested a visit to the site to establish the true position.

17. The other issue alleged is that of delay. The plaintiff has allegedly been causing delay by bringing frivolous applications which have only served to delay the hearing. But is this what the record reflects? Nope, not very much so. The 1st defendant himself is shown to have had his application too which required judicial time to address it. It appears to me therefore that delay cannot be attributed to the plaintiff alone. The 1st defendant also has a hand in it. It is good to apportion blame fairly.

18. And will the 1st defendant be prejudiced if joinder is allowed? I am not persuaded that he will. I reckon that whatever prejudice he may suffer is compensable by way of costs. The case is still fresh. There is nothing like repeating the trial. All what is required is expeditious amendment of proceedings to bring the new parties on board and an equally expeditious compliance with other pre-trial requirements so that trial can take place with all due dispatch.

19. The plaintiff sued the initial defendant because she had allegedly sold her land parcel NO KERICHO/SILIBWET/1428 to him and received payment. But she later tried to renege on the agreement and had allegedly teamed up with her sons and other parties to deprive the plaintiff of ownership. It is on this same parcel of land that the proposed third defendant is said to have put up new structures. The proposed 3rd defendant seems to be related not only to the initial deceased defendant but to the current 1st defendant as well.

DECISION

20. It appears to me that even if the court decides not to allow the plaintiff to enjoin the proposed 3rd defendant, the plaintiff can easily opt to sue the same party in a new suit. Yet it is very convenient to handle the issues raised in this one suit. If the court agrees with the 1st defendant, it will be abetting a possible multiplicity of suits. Given the facts as I have highlighted them, the principles applicable in matters of joinder and amendment require that the plaintiff be allowed to bring the proposed 3rd defendant on board. Nobody has complained about the joinder of 2nd defendant. That one is therefore deemed a necessary party. My considered view is that it serves the interests of justice well to allow the application.

21. The upshot, when all is considered, is that the application herein has merits. I therefore allow it in terms of prayer 2. Costs – that is prayer 3 – to be in the cause.

Delivered,Dated and signed at Kericho this 13th day of February, 2020.

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A. K. KANIARU

JUDGE