Omusugu v Barasa & 2 others

5. Patrick Emoit Barasa and Bisansio Etyang Ojuma (the 1st and 2nd Defendants respectively) led grounds of opposition dated February 27, 2023 raising the following: 1. The application is belated and an afterthought this suit having been led 2 years ago. 2. The application is frivolous and ought to be dismissed with costs. 6. Christopher Omuse Odere (the 3rd Defendant and acting in person) did not le any response to the application. Instead, he has led a letter dated June 8, 2021 and addressed to me in which he has stated, inter alia, that he is not a party to this dispute as he is not claiming any land from the Plainti. Instead, the Plainti should address his claim to his sister-in-law one Pascalia Asokoni Barasa. He has asked this Court to “acquit” him from this case. 7. I notice from the pleadings that the 3rd defendant has not led any defence to the Plainti’s case in which he seeks the main remedy that the Defendants be permanently injuncted from alienating, encroaching, trespassing, cultivating, occupying and/or in any other way interfering with the Plainti’s lawful use of and possession of the land parcel No South Teso/apokor/4758. 8. I take this earliest opportunity to advise the 3rd Defendant to le his defence against the Plainti’s suit. The letter addressed to the Judge and dated June 8, 2021 is not a defence nor any response known in law in defence to the plaint. And since the 3rd Defendant is acting in person, I direct that the Deputy Registrar replies immediately to his aforesaid letter to the address therein. Further, both the reply and a copy of this ruling be personally served upon the 3rd Defendant so that he is well informed about these proceedings to-date. 9. The application has been canvassed by way of written submissions. These have been led both by Mr Otsiula instructed by the rm of J. B. Otsiula & Associates Advocates for the Plainti and by Mr. Ashioya instructed by the rm of Ashioya & Company Advocates for the 1st and 2nd Defendants. The 3rd Defendant, as already stated above, did not le any response to the application. 10. It is also important to state that whereas the 1st and 2nd Defendants have led the statement of their witness one Pascal Were Oundo dated 27th July 2021, I have been unable to trace a copy of their defence or their statements. If they did le them, they are not in the le and they should liaise with the Registry accordingly. 11. I have considered the application, the grounds of opposition and the submissions by counsel. 12. The 1st and 2nd Defendants opted to le grounds of opposition to the application and which I have already set out above. Grounds of opposition should address only issues of law and no more. I do not see what issues of law have been raised in the grounds of opposition. That means that the issues raised by the Plainti in his supporting adavit have not been rebutted. Facts averred to on oath through an adavit can only be controverted by way of another adavit or by cross-examination – Daniel Kibet Mutai & others v A.g C.a. Civil Appeal No. 95 of 2016 [2019 eKLR]. Essentially therefore, the Plainti’s Notice of Motion is un-opposed. 13. I have nonetheless considered the application on the basis of the applicable law and precedents. 14. Order 8 rule 3(1) of the Civil Procedure Rules provides that: “ 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22180/eng@2023-12-14 2

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otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.” 15. Section 100 of the Civil Procedure Act states: “ The Court may at any time, and on such terms as to costs or otherwise as it may think t, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.” The power to allow amendment of pleadings is wide and the discretion is aimed at ensuring that the substantive issues raised in a case are brought to the fore for determination. In the case of Eastern Bakery v Castelino 1958 EA 461, it was stated that: “ ..... amendments to pleadings sought before the hearings should be freely allowed if they can be made without injustice to the other side, and that there is no injustice if the other side can be compensated by costs.” In the case of Joseph Ochieng & others v First National Bank of Chicago C.a. Civil Appeal No. 149 of 1991, the Court quoting from Bullen and Leake & Jacobs Precedents of Pleadings – 12th edition stated thus: “ The ratio that emerges out of what is quoted from the said book is that powers of the Court to allow amendments is to determine the true, substantive merits of the case; amendments should be timeously applied for; power to so amend can be exercised by the Court at any stage of the proceedings (including appeal stages); that as a general rule, however late the amendment is sought to be made, it should be allowed if made in good faith provided costs can compensate the other side; ....that the proposed amendment must not be immaterial or useless or merely technical; ....that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially dierent character which could more conveniently be made the subject of a fresh action; the plainti will not be allowed to reframe his case or his claim if by any amendment of the plaint, the defendant would be deprived of his right to rely on Limitation Acts.” The above was approved in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited C.A. civil appeal no 81 of 2004 [2013 eKLR]. see also Central Kenya Ltd v Trust Bank Limited 2000 2 EA 365 where it was stated as follows on the same issue: “ ... a party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided that there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is aected and that the amendment can be allowed without injustice to the other side.” 16. Guided by the above, I have looked at the proposed amendments and they do not oend either the law or judicial precedents. Although this case was led in 2021, it has not commenced hearing. The plainti initially led his case acting in person on April 15, 2021 before the rm of J. B. OTSIULA came on record for him on October 28, 2021. Since then, no pre-trial has been done. I have not heard the 1st and 2nd defendants allege that the proposed amendment will prejudice them in any manner. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22180/eng@2023-12-14 3

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17. The upshot of all the above is that the notice of motion dated February 2, 2023 is allowed in the following terms: 1. The Plainti to le and serve the amended plaint within 7 days of this ruling. 2. The defendants will have 15 days from the date of service to le and serve their defence or amended defence (if any) together with any other documents and written statements. 3. Both parties shall le adavits of service. 4. Thereafter, pre-trial before the Deputy Registrar on January 9, 2024. 5. The Plainti shall meet the 1st and 2nd Defendants costs assessed at Kes 5,000. BOAZ N. OLAO JUDGE RULING DATED, SIGNED AND DELIVERED BY WAY OF ELECTRONIC MAIL TO THE PLAINTIFF, THE 1ST AND 2ND DEFENDANTS ON THIS 14TH DAY OF DECEMBER 2023. The 3rd Defendant be served personally by the Court and an affidavit of service be filed accordingly. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22180/eng@2023-12-14 4

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