Ngugi v Maina & 15 others (Environment and Planning Civil Case E002 of 2024) [2025] KEELC 3445 (KLR)

RULING 1. This ruling is on the notice of motion dated 22-11-2024. The motion seeks the following residual orders. (b) The Court to order that the further amended plaint dated 9-10-2024 be struck out of the record. (c) That in the alternative and without prejudice to prayer (b) above, the court be pleased to strike out the suit as against the 11th Defendant for being time barred (d) That the costs of this application be borne by the Plaintifi. ( e) Any other order that the Court may deem fit. 2. The motion is based on thirteen grounds and is supported by an afidavit sworn by the 11th Defendant dated 22-11-2024 which has five annexures. The gist of the above material is as follows. One, the plaint herein was filed on 26-4-2024 and relates to L.R. Nos. Loc.11/Maragi/3537-3540 which the Plaintifi says were a subdivision of L.R. No. Loc.11/Maragi/1492. Two, the Plaintifi amended the plaint and filed an amended plaint dated 14-5-2024 which brought in the 15th and 16th Defendants. Three, the Plaintifi has filed a further amended plaint dated 9-10-2024 which has sought to introduce properties known as Loc.11/Maragi/10393-10396 which are a result of the subdivision of L.R. No. Loc.11/ Maragi/4232. Four, in the initial plaint, the cause of action was in respect to the alleged fraudulent subdivision of L.R. No. 11/Maragi/1492 and transfer of the resultant parcels. Five, in the further amended plaint, the Plaintifi sought to introduce a new cause of action being the illegal subdivision of L.R. No. Loc.11/Maragi/4232 and alleged illegal transfer of the resultant parcels, without giving the particulars of the illegality. However, the alleged illegalities can be deduced from the Plaintifi’s afidavit dated 9-1-2024 which alleges that the transfer was in 1997 when the deceased owner was said to have been so sick that he could not transact. Six, it is clear that the further amended plaint seeks to introduce a new cause of action which is incompatible with the cause of action in the initial plaint and this fundamentally changes the suit before the court. Seven, the further amendment was done without leave of the court which is improper and it is an underhand scheme to defeat the 11th Defendant’s application dated 6-7-2024. Eight, the Plaintifi admits through the afidavit dated 9-10-2024 that the property known as Loc.11/Maragi/4232 was transferred from the deceased owner, Lawrence Ngugi Njuguna, in the year 1997 which is approximately 27 years ago and thus the claim is time barred. Finally, the further amended plaint is only for striking out. For the above and other reasons, the 11th Defendant prays that the motion dated 22-11-2024 be allowed as drawn. 3. The motion is unopposed because the Plaintifi did not file any response thereto. I am not sure that the Plaintifi was served because I do not see any afidavit of service on record. Be that as it may, I will proceed to determine the motion as it is, more so because even though the Applicant’s counsel had promised to file brief submissions, I cannot see them on record either. 4. I will frame the issues as follows. a. Whether failure to seek leave to file a further amended plaint is fatal to the suit. b. Whether introducing a new cause of action renders a suit incompetent. c. Whether the suit is time barred just because the alleged fraud occurred in 1997. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3445/eng@2025-04-07 2

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5. I have carefully considered the motion in its entirety including the grounds, the supporting afidavit, the annexures and the entire record. I make the following findings on the three issues above. On the 1st issue, I find that failure by the Plaintifi to seek leave to amend the plaint a second time is not fatal to her suit. The 11th Defendant has not shown what prejudice he will sufier as a result of the 2nd amendment. He himself has not filed a defence within the period stipulated by the law especially Order 7 rules 1 and 5 of the Civil Procedure Rules. Order 7 rule 1 Civil Procedure Rules provides as follows. “ Where a Defendant has been served with a summons to appear he shall, unless some other or further order be made by the court, file his defence within 14 days after he has entered appearance in the suit and serve it on the Plaintifi within fourteen days from the date of filing the defence and file an afidavit of service. “Subrule (5) The defence and counterclaim filed under rule 1 and 2 shall be accompanied bya. an afidavit under Order 4 rule 1 (2) where there is a counterclaim; b. a list of witnesses to be called at the trial; c. written statement signed by the witnesses except expert witnesses; and d. copies of documents to be relied on at the trial.” There is an afidavit of service dated 3-6-2024 which is to the efiect that all the Defendants were served within summons to enter appearance on 27-5-24 at 10.30am at the Chief’s ofice Mjini. The summons to enter appearance required the Defendants to enter appearance within 15 days. The Defendants ought to have filed their defences by end of July. None of the Defendants can therefore cast any stone upon the Plaintifi because they themselves are not clean. 6. A Court should sustain a suit rather than dismiss it. Dismissal of a suit that can be cured by whatever means is a draconiam move that derogates on the right to a fair hearing enshrined in Article 50(1) of the Constitution which guarantees that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or if appropriate, another independent and impartial tribunal or body. 7. On the second issue, I find that introducing a new cause of action, does not render a suit incompetent especially because the Defendants have not filed their defences. Under Order 8 rule 5 of the Civil Procedure Rules, amendment can be at any stage so long as the real question in controversy between the parties is identified and captured in the pleadings. The Defendants are at liberty to defend the suit as they wish and they are not limited in such defence. 8. Regarding the third and final issue, I find that the suit is not time barred just because the alleged fraud occurred in the year 1997. Section 26 (a) of the Limitation of Action Act provides as follows. where, in the case of an action for which a period of limitation is prescribed, either – a. the action is based upon the fraud of the Defendant or his agent, or of any person through whom he claims or his agent; or https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3445/eng@2025-04-07 3

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b. andThe period of limitation does not begin to run until the Plaintifi has discovered the fraud or c, mistake or could with reasonable diligence have discovered it” In this case, the Plaintifi says that she discovered the fraud in February 2016. That is when time started running. The time envisaged in Section 7 of the same Act has not lapsed. It will lapse 12 years from 2016 which will be the year 2028. For the above stated reasons, I find no merit in the motion dated 22-11-2024. I dismiss it in its entirety. Costs in cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 7TH DAY OF APRIL, 2025. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Mwangi Njonjo Plaintifis’ Counsel – Miss Wanjiru h/b Counsel for 1st, 2nd, 4th, 5th, 6th, 7th, 12th, 13th, 15th and 16th Defendants – Mr. Kariuki Counsel for the 8th Defendant – Absent Counsel for the 11th Defendant – Mr Denis Maina Counsel for the 12th Defendant – Absent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3445/eng@2025-04-07 4

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