Micheal Kirugo Kibathi v Anthony Gichuki Gichau & 3 others [2018] KEELC 149 (KLR)

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ELC SUIT NO. 973 OF 2012 MICHEAL KIRUGO KIBATHI..............................PLAINTIFF/APPLICANT VERSUS ANTHONY GICHUKI GICHAU...........................................1 ST DEFENDANT ANNE NJERI GICHUHI.......................................................2 ND DEFENDANT MAHIRA HOUSING COMPANY LIMITED.....................3RD DEFENDANT TERESIAH WANJIKU GITHAIGA.............PROPOSED 4TH DEFENDANT RULING What is before me for determination is the plaintiff’s Notice of Motion application dated 17 th July, 2018 seeking leave to amend the plaint and add one, Teresiah Wanjiru Githaiga in the suit as a 4 th defendant. The application is supported by the plaintiff’s affidavit sworn on 17 th July, 2018 and is premised on grounds that the 1 st and 2nd defendants have since the filing of this suit transferred their interest in the suit property to the proposed 4th defendant. The plaintiff has contended that the intended amendment is necessary to enable the court to effectively determine all the issues in controversy between the parties. The plaintiff has contended that no prejudice will be occasioned to the defendants if the application is allowed as they will have an opportunity to amend their defences in response to the amended plaint. The application is opposed by the 1 st and 2nd defendants through a replying affidavit sworn by the 1 st defendant on 17th September, 2018. The 1st and 2nd defendants have contended that after the plaintiff’s application for temporary injunction was dismissed on 25 th September, 2013, they sold the suit property to the proposed 4 th defendant. The 1st and 2nd defendants have averred that they will be highly prejudiced if the orders sought are granted since the suit property has already changed hands. The 1 st and 2nd defendants’ have contended that the plaintiff’s remedy lies in seeking monetary compensation from the 3 rd defendant. The application was argued on 18 th October, 2018. I have considered the application together with the affidavit filed in support thereof. I have also considered the replying affidavit filed by the 1 st and 2nd defendants in opposition to the application. The only issue arising for determination is whether the plaintiff has established sufficient grounds to warrant the joinder of the proposed 4 th defendant to the suit. In the draft amended plaint annexed to the application, the plaintiff has stated that he was the bona fide owner of Plot No. 487 (the suit property) within Land Parcel No. 10901/36 owned by the 3 rd defendant. The plaintiff has averred that the 3 rd defendant illegally and fraudulently transferred the suit property to the 1st and 2nd defendants without his consent. The plaintiff has stated further that the 1 st and 2nd defendants have subsequently transferred the suit property to the proposed 4 th defendant. Order 1 Rule 10(2) of the Civil Procedure Rules which gives the court power to substitute and add parties to a suit provides as follows: “(2) 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” The underlying principle in amendment of pleadings and joinder of parties was set out by the Court of Appeal in the case of Central Kenya Ltd v Trust Bank & 4 others Civil Appeal No. 222 of 1998 as follows:-

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