Nkirote v Land Registrar Meru County & 17 others (Environment & Land Case E017 of 2021) [2024] KEELC 985 (KLR) (21 February 2024) (Ruling) Neutral citation: [2024] KEELC 985 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MERU ENVIRONMENT & LAND CASE E017 OF 2021 CK NZILI, J FEBRUARY 21, 2024 BETWEEN CELINA NKIROTE .................................................................................... PLAINTIFF AND LAND REGISTRAR MERU COUNTY ......................................... 1ST DEFENDANT ATTORNEY GENERAL ................................................................. 2ND DEFENDANT OFFICER ........................................................................................... 3RD DEFENDANT MERU COUNTY SURVEYOR ....................................................... 4TH DEFENDANT GIDEON MUGAMBI MWORIA .................................................... 5TH DEFENDANT MYLES MURITHI MURIUKI ....................................................... 6TH DEFENDANT M’MBOROKI NDURA ................................................................... 7TH DEFENDANT JULIUS KIMATHI MUNGANIA ................................................... 8TH DEFENDANT YETU PAMOJA COOPERATIVE SACCO .................................... 9TH DEFENDANT JAMES WAGEMA RUTERE ......................................................... 10TH DEFENDANT JULIUS KIMATHI MUNGANIA ................................................. 11TH DEFENDANT AFUSA GRACE SULEIMAN ........................................................ 12TH DEFENDANT YUNUS ADAM MUTHAMIA ...................................................... 13TH DEFENDANT JOSEPH HUNYU THIRIKWA ..................................................... 14TH DEFENDANT PRISCILLA MWARI ..................................................................... 15TH DEFENDANT M’MUNGANIA M’ARITHO ........................................................ 16TH DEFENDANT MERCY KANYIRI ......................................................................... 17TH DEFENDANT https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/985/eng@2024-02-21 1
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MICHAEL MWIRIGI MAITIMA ................................................ 18TH DEFENDANT RULING 1. The court is asked to grant the plaintifi leave to amend the plaint as per the annexed draft plaint. The reasons are contained on the face of the application and a supporting afidavit sworn by Celina Nkirote on 20.11.2023. 2. Briefiy, the plaintifi says the proposed amendments are necessary to bring all questions and information to the fore for a just and fair determination of the suit. Further, the applicant says no prejudice will be occasioned to the respondents, who will have a chance to amend their defense. Additionally, the applicant avers the amendments were necessitated by the various changes of the suit land at the registry and some of the defendants who have encroached onto her land. 3. After the service of the application upon the defendants/respondents, it was only the 5th and 6th defendants/respondents who opposed the application by a replying afidavit sworn on 15.12.2023 by Mercy Kanyiri. It is averred that the application is misconceived, a waste of the court’s time, and an abuse of the court process. 4. The 5th and 6th defendant’s/respondents aver there has been an inordinate delay; the applicant came to court with dirty hands, the initially amended plaint was struck out on 20.9.2022 and the delay has not been explained. It was a delaying tactic; litigation must come to an end and the application amounts to a travesty of justice; otherwise, justice delayed was justice denied. 5. Order 8 rule 5 of the Civil Procedure Rules grants the court powers to allow for amendment of pleadings at any stage of the proceedings on such terms as to costs or otherwise as may be just and in such a manner as it may direct. In Central Bank Kenya Ltd vs Trust Bank Ltd (2002) E. A 365, the court set out some of the considerations on whether to grant leave as prejudice to other parties, if the amendment will unduly delay the case and the amendments are necessary. The court said the delay was not a ground for declining leave unless the delay would prejudice other parties. 6. In Uchumi Supermarkets Ltd & another vs Sidhi Investments Ltd (2018) eKLR, the court cited Kenya Hotels Ltd vs Oriental Commercial Bank Ltd (2018) eKLR that whether or not to allow an amendment depends on the nature and extent of the amendment. 7. The reasons given by the applicant for the amendment are that changes in the status of the suit land and its occupation by third parties have occurred during the pendency of this suit. The respondents have not termed the proposed amendments as bringing on board inconsistent cause of action and or as denying them their vested interests or accrued legal rights or occasioning an injustice to them. See George Gikubu Mbuthia vs Consolidated Bank of (K) Ltd & another (2016) eKLR. 8. The hearing of the suit is yet to commence. It is also not in dispute that some of the respondents have passed on. The delay as alleged does not discount the fact that the application is made in good faith, given the changes to the title were beyond the control of the applicant. The proposed amendments are not immaterial, useless, or merely technical. They go to the issue in controversy before this court. See Joseph Ochieng & 2 others vs First National Bank of Chicago (1995) eKLR. 9. The upshot is that I allow the application. The amended plaint shall be filed within 15 days from today. Orders accordingly. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/985/eng@2024-02-21 2
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DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 21ST DAY OF FEBRUARY 2024 In presence of C.A Kananu Plaintifi 10th, 13th and 16th defendants Ashaba for plaintifi Miss Kerubo for 16th & 17th respondent Miss Kendi for 1st & 3rd respondents HON. CK NZILI JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/985/eng@2024-02-21 3
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