Wathanangu Holdings Ltd v Attorney General & 4 others; University of Nairobi

RULING 1. This ruling addresses the notice of motion dated 3/02/2025, led by the plainti within the provisions of Order 8 Rule 3 and Order 8 Rule 7 of the Civil Procedure Rules. The following prayers are sought therein: a. Spent b. That the honourable court be pleased to grant the plainti leave to re-amend the amended plaint dated 13/02/2023 as indicated in the draft re-amended plaint exhibited in the adavit in support of the motion. c. That if leave sought in prayer (b) above is granted, the plainti does le the re-amended plaint within 7 days along with supporting documents and/or witness statements. d. That the costs of this application be in the cause. 2. The motion is supported by the grounds outlined in the motion and the supporting adavit of Joseph Munyiri Munene, sworn on the same date. In a nutshell, he states that the plainti is pursuing a claim of Kshs 5,144,142,225.00 as detailed in the re-amended plaint. During the hearings, the defendants successfully objected to the inclusion of a report by Hass Consult Ltd, which has been excluded by the trial judge. 3. He maintains this decision has left the plainti without critical evidence to support a substantial part of its claim. In light of this setback, the plainti took proactive measures by commissioning Gimco Ltd to prepare a comprehensive valuation report. Hence, the report, dated 17/12/2024, which values the suit property at Kshs 450,000,000 and estimates the gross rental income from 2001 to 2027 at Kshs 1,268,187,061. 4. He further avers that the plainti has since submitted a draft re-amended plaint reecting this new valuation, emphasising the necessity for this amendment to ensure a fair and just resolution. Allowing this re-amendment is crucial, as it will enable substantive justice without signicantly disrupting the proceedings or unfairly prejudicing the defendants. He tendered a valuation report and the re-amended plaint. 5. On the service of the motion, the 2nd defendant, through Collins F. Omondi, challenged it through the replying adavit he deposed on 28/02/2025, where, in brief, he informs the court that the motion before the court is res judicata, following a ruling made on 5/12/2024, which addressed a similar oral application by the plainti's counsel. Further, the plainti, on 6/12/2024, was to apply for review of that ruling, but instead submitted this motion. 6. He asserts, this attempt to introduce fresh evidence is improper, especially as the plainti previously abandoned calling the relevant witness to produce a valuation report. Allowing the proposed amendments to the plaint and the introduction of a new valuation report at this late stage would severely prejudice the 2nd defendant, who has already structured its defence and counterclaim in response to the claims as they currently stand. These amendments would represent a second amendment to the plaint, highlighting the plainti's apparent uncertainty regarding its own claims. 7. Additionally, he states the motion has been brought after an inordinate and unjustied delay, as the trial has already commenced. Since 2012, the plainti has consistently delayed proceedings through various adjournments and amendments, as documented in court records from multiple dates. He maintains https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8701/eng@2025-12-16 2

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that while parties do have the right to amend pleadings, such actions must be timely and should not disadvantage other parties involved in the case. 8. He asserts that the plainti's witness has already undergone cross-examination by the 2nd defendant's counsel, and the grounds of the defence have been clearly established. The plainti’s desire to re-amend the plaint appears to be an eort to compensate for evidence that has not been substantiated, indicating uncertainty and speculative amendments of its claims. Therefore, the court should deny the motion to ensure fairness and integrity in the proceedings. 9. The plaintis also led a notice of preliminary objection (PO) dated 28/02/2025 that raised the issue of res judicata. In this court’s humble opinion, and after reviewing it, this court nds that it falls signicantly short, as it does not meet the threshold established in Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors (1969) EA 696 because it raises matters of fact. In any case, the issues have been adequately addressed in the replying adavit. 10. Although the 3rd defendant claims it led grounds of opposition, the CTS system shows that, although it was assessed and invoiced, it was never paid for. Suce it to say, it never led grounds of opposition. A similar fate befalls the 4th defendant to the counterclaim’s alleged notice of appointment by M/s. Wambugu & Muriuki Advocates dated 25/02/2025. 11. In accordance with the court's directive, the motion was canvassed through written submissions received from Miss Kinoti & Kibe Co. Advocates on behalf of the plainti, dated 19/05/2025; Lutta & Co. Advocates on behalf of the 2nd defendant, dated 20/06/2025; and Tiego & Co. Advocates on behalf of the 3rd defendant, dated 2/06/2025. 12. Accordingly, this court has examined the submissions and, after identifying the issues for resolution, this ruling will, in its analysis and decision, address the arguments presented in the competing submissions concerning the specic issue and also consider pertinent laws and judicial precedents cited. Therefore, having reviewed the motion, its grounds, adavits, annexures, court record, as well as the opposing submissions, the following issue emerges for determination: whether the motion is an abuse of court process and or/merited. 13. Only the 2nd defendant addressed this issue of abuse of court process when it raised the question of res judicata. In addressing this matter as framed by the court, it is essential to emphasise the pertinent laws and the prevailing jurisprudence concerning abuse of court processes. 14. Concerning the law, Section 3A of the Civil Procedure Act states that nothing in this Act limits or impacts the court's inherent authority to make necessary orders to achieve justice or prevent court process abuse. Furthermore, Order 2 Rule 1 (d) of the Civil Procedure Rules authorises the court, at any point during proceedings, to order the striking out or amendment of pleadings if they are deemed to misuse court processes. 15. An abuse of court process is any departure from established good order that signicantly deviates from reasonable use of the court process; such abuse occurs when an individual makes excessive, improper, or contradictory use of court procedures, contravening their natural legal principles. Therefore, the court adopts the dicta in the persuasive decision in Satya Bhama Gandhi v. Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR), which outlined several examples of instances of abuse of court process, thus: “ (a) Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8701/eng@2025-12-16 3

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matter between the same parties even where there exists a right to begin the action. (b) Instituting dierent actions between the same parties simultaneously in dierent court even though on dierent grounds. (c) Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and respondent notice. (d) Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below. (e) Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action. (f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right. (g) Where an appellant les an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal. (h) Where two actions are commenced, the second asking for a relief which may have been obtained in the rst. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent.” 16. The second defendant has posited res judicata as a foundation for an abuse of court process; however, the threshold for this doctrine, as specied in our Section 7 of the Civil Procedure Act, has not been met. 17. Nevertheless, after reviewing the record, particularly the court's ruling of 5/12/2024, which rejected the prayer by the plainti’s counsel for introduction of a new expert report due to the matter having reached an advanced stage of the hearing, amongst other reasons, including prejudice to the defence, this court concludes that it is functus ocio regarding the submission of a new report by the purported expert valuer. It consequently follows that the purported amendments, which were allegedly derived from this intended disqualied expert report, have no legs to stand on and cannot be entertained by this court. 18. It appears that the plainti is eager to seek a second opportunity by circumventing the process in order to present new evidence, and regardless of the manner in which it aims to introduce the valuer's expert report- whether through amendments or misrepresentations of court proceedings, which this court has not viewed favourably- such attempts will not be tolerated. To clarify, during the hearing, the court, upon hearing counsel for the parties, disallowed the plainti’s witness from producing the expert report. The court permitted the plainti’s counsel to either request witness summons for the maker to produce the report or to abandon it. The plainti's counsel chose the latter option. 19. In consequence and for the above reasons, this court nds that the notice of motion dated 3/02/2025 is an abuse of the court process. It is disallowed, and the costs thereof shall abide by the outcome of the suit. A mention date shall be given for purposes of further directions on the hearing of various applications to cease acting by dierent counsel. Liberty applies to M/s. Wambugu & Muriuki Advocates to regularise its representation. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8701/eng@2025-12-16 4

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Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 16TH DAY OF DECEMBER, 2025. HON. A. Y. KOROSS JUDGE 16.12.2025 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms Kanja Court Assistant Mr. Mwathe holding brief for Mr. Kibe Mungai for plainti. Miss Seleke holding brief for Mr. Lutta Senior Counsel for 2nd defendant. Miss Masinde for 5th defendant – National Land Commission. Miss Onyango holding brief for Mr. Tiego for 3rd defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8701/eng@2025-12-16 5

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