keelc-2023-19022

3. The application is premised on the grounds set out on the face of the motion. It is supported by an adavit sworn on 24/3/2022 by Paul Ngugi Muchai. It was canvassed through written submissions dated 4/4/2023, led by M/s Harrison Kinyanjui & Co Advocates. 4. Mr Christopher Kang’ethe Kigwe swore a replying adavit dated 14/2/2023, opposing the application. Whereas he deposed that he was the 1st defendant and also a director of Kigwe Limited, he did not expressly disclose whether he had instructions to swear the adavit on behalf of Kigwe Limited. He said nothing about the allegations that he sold land to the plaintis and that the land he sold to the plaintis is alleged to be registered in the name of Kigwe Limited. He also said nothing about the allegation that he received the purchase price in furtherance of the alleged sale. The rm of Githii & Co Advocates led written submissions dated 15/5/2023 in opposition to the application. 5. I have considered the application; the response to the application; and the parties’ respective submissions. I have also read the draft further amended plaint exhibited by the applicants. Two questions fall for determination in the application. The rst question is whether the application satises the criteria upon which our courts exercise jurisdiction to grant leave to a party to amend pleadings. The second question is whether the criteria for joinder of a new party to a suit has been satised. I will be brief in my disposal of the two issues. 6. The case of the plaintis is that the 1st defendant is “the controlling and singular director” of Kigwe Limited. In that capacity, he sold to them the respective portions of Land Reference Number 10823/5 which is registered in the name of Kigwe Limited. It is their case that as the registered proprietor of the land which the 1st defendant sold to them, Kigwe Limited is a necessary party in this suit. 7. The case of the 1st defendant is that the proposed amendment seeks to introduce an alternative prayer for refund of the purchase price, which prayer is statute-barred. They further contend that there is no cause of action disclosed against Kigwe Limited. Further they oppose the application on the ground that the delay in seeking leave to further amend the plaint has not been explained. 8. The principle which guides our courts when exercising jurisdiction to grant leave to a party to amend pleadings was outlined by the East African Court of Appeal in Eastern Bakery v Castelino [1958] EA 461 as follows: “ Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs.” 9. In Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] eKLR the Court of Appeal of Kenya outlined the principle as follows: “ 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 suer injustice which cannot properly be compensated for in costs.” 10. At this point, trial has not commenced. The defendants will have ample opportunity to respond to the further amended pleading. Secondly, whereas the 1st defendant contended in his replying adavit that the plaintis seek to introduce a claim for refund of the purchase price, a perusal of the record in this suit reveals that the claim for refund of purchase price was incorporated in the plaintis’ statement of claim as prayer (ee) in the amended plaint dated 24/3/2016. Gacheru J admitted the said amended plaint on 3/10/2017. It is therefore not true that the prayer for refund of the purchase price is a new cause of action or a new prayer that is statute-barred. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19022/eng@2023-07-19 2

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11. The 1st defendant further deposed that there is no cause of action disclosed against Kigwe Limited. None other than the 1st defendant has placed before this court a certicate of title showing that the suit property is registered in the name of Kigwe Limited. The plaintis contend that as a director of Kigwe Limited, the 1st defendant entered into sale agreements with them and received purchase prices from them. Kigwe Limited is the registered proprietor of the land its director sold to them. They want the 1st defendant to cause the portions that he sold to them to be conveyed to them. In the alternative they want refund of the purchase prices from the 1st defendant. 12. Given the above allegations and circumstances, under order 1 rule 10(2) of the Civil Procedure Rules, Kigwe Limited, as the registered proprietor of the land which the 1st defendant sold to the plaintis is a necessary party to these proceedings, for the complete and eectual settlement of the question as to whether the 1st defendant should be made to convey the portions which he is alleged to have sold to the plaintis Kigwe Limited is similarly a necessary party in determining the question as to whether the 1st defendant should be ordered to refund the purchase price he is alleged to have received as purchase price for the portions of land that was registered in the name of Kigwe Limited. 13. For the above reasons, I nd that the criteria for leave to amend and the criteria for joinder of a new party to a suit under order 1 rule 10(2) have both been satised. 14. The result is that the notice of motion dated 24/3/2022 is allowed in the following terms: a. The plaintis are granted leave to further amend their pleadings. The further amended plaint shall be led and served within 14 days. b. Costs of the application shall be in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 19TH DAY OF JULY 2023 B M EBOSO JUDGE In the presence of:Mr Harrison Kinyanjui for the Plaintis/Applicants Ms Mutinda for the 1st Defendant Court Assistant: Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19022/eng@2023-07-19 3

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