[2024] KEELC 6400 (KLR)

Scorpion Properties Ltd & another v Mody & 8 others (Environment and Land Case Civil Suit 2156 of 2007 & Civil Suit 1727 of 2002 (Consolidated)) [2024] KEELC 6400 (KLR) (26 September 2024) (Ruling)

Neutral citation: [2024] KEELC 6400 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment and Land Case Civil Suit 2156 of 2007 & Civil Suit 1727 of 2002 (Consolidated)

LN Mbugua, J

September 26, 2024

Between

Scorpion Properties Ltd

Plaintiff

and

P.I Mody

1st Defendant

Robert Otachi

2nd Defendant

The National Land Commission

3rd Defendant

The Chief Land Registrar

4th Defendant

The County Government Of Nairobi

5th Defendant

Tonie Leslie Wesonga

6th Defendant

As consolidated with

Civil Suit 1727 of 2002

Between

Kenya Wine Agencies Limited

Plaintiff

and

Hina Harji Varsani

1st Defendant

Verbal Dhanji Varsani

2nd Defendant

The Commissioner Of Lands

3rd Defendant

Ruling

1. The 6th Defendant in civil suit No. 2156 of 2007 filed the Notice of Motion Application dated 25. 6.2024 seeking leave to further amend his amended defence and counterclaim. The application is premised on grounds on its face and on the 6th Defendant’s supporting affidavit sworn on 25. 6. 2024 where he avers that he is the registered proprietor of LR No. Block 91/217. He contends that the Attorney General has filed a voluminous bundle of documents and witness statements which have raised salient issues on the procedure and process of acquisition of the suit land. That since the said documents were filed long after he had filed his amended defence and counterclaim, there is need for him to file a further amended defence and counterclaim to include a prayer for compensation for the current value of the said property in case it reverts back to the government. He avers that the said amendments do not introduce a new cause of action and that the Plaintiff will not suffer prejudice.

2. The application is unopposed.

3. The 6th Defendant filed submissions dated 5. 8.2024 in which he urges the court to exercise its discretion under Order 8 Rule 3 & 5 of the Civil Procedure Rules and allow the amendments. The case of John Nyagaka Osoro v Reynold Karisa Charo & 5 others [2021] eKLR is relied upon.

4. I have considered the issue raised herein as well as the submissions of the applicant. The provisions of Order 8 Rules 3 and 5 of the Civil Procedure Rules gives this court discretion to allow amendments at any stage of the proceedings in order to bring forth all the issues in dispute.

5. This suit is yet to take off. The court has considered that all the parties herein are not opposed to the application, thus the amendments sought will not occasion them prejudice. The court has also considered that the amendments do not introduce new issues.

6. In granting the orders sought, the court is persuaded by the holding of the court in Springbox Kenya Ltd v Daniel Kulanga Nthusa [2015] eKLR where it was stated that;“It will be sufficient to say that amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side.”

7. In the final analysis, the application dated 25. 6.2024 is allowed as drawn. However, the further amended defence and counter claim is to be filed and served within 14 days from the date of this ruling.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-M/s Kendi holding brief for Okongo Mogeni for plaintiffsGithui for 1st DefendantGitanda for 2nd DefendantA.Kamau for 4th DefendantNyakoe for 5th DefendantAyecko for 6th DefendantCourt assistant: Joan