Cicilia Nyambura Thairu v Michael Kamotho Karuru

c) That this Honourable Court be pleased to grant the Defendant leave to file and serve additional witness statements and/or documents out of time. d) That this Honourable Court be pleased to grant leave to the Defendant to summon officers from the relevant Government Departments including the County Survey Department and the Physical Planning Department to testify and produce official records relating to the alleged access road. e) That the matter be transferred and or proceed in the Chief Magistrates Court, ELC division as the current court lacks jurisdiction as subject property under dispute is valued at under Kenya shillings twenty million (Kshs 20,000,000.00) only. f) That the costs of this application be in the cause. ELC L CASE NO. E066 OF 2023 Page 2 of 19 Ruling

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2. The application is premised on grounds on its face and on the Defendant’s supporting affidavit. He avers that the suit concerns alleged obstruction of an access road leading to the Plaintiff’s property known as LR Nairobi Block 66/7141, which is adjacent to LR Nairobi Block 66/7142, property which he leased for thirteen (13) years in 2016, from the Defendant’s sister, one Hellen Wandia Waweru (now deceased). Further, that the said properties are both hived from Dagoretti/Riruta/2840. 3. He claims that while filing this suit, his previous advocates omitted certain critical documents and evidence necessary for the proper determination of this dispute which include: the Lease Agreement under which he occupies LR Nairobi Block 66/7142, receipts and or tenancy agreements pertaining to the tenancies on the said plot, records relating to the planning, subdivision and construction, and survey planning documents relating to the alleged access road subject of the suit. Further, that it will be necessary to ELC L CASE NO. E066 OF 2023 Page 3 of 19 Ruling

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summon officers from the County Survey Department & Physical Planning Department to testify and produce official records relating to the alleged access road. 4. He also contends that it is necessary to amend the Statement of Defence and possibly introduce a Counterclaim with the possibility of a third-party notice seeking to join administrators of the estate of Hellen Wandia Waweru, the Lessor of LR Nairobi Block 66/7142. He reiterates that the Plaintiff will not suffer prejudice as any inconvenience can be compensated by an award of damages. Response 5. The Plaintiff filed a replying affidavit in opposition. She avers that her claim lies on encroachment by the Defendant on to a public road which leads to her property, LR Nairobi Block 66/7141, and she has no interest over the Defendant’s Lease over LR Nairobi Block 66/7142. She urges the Court to take judicial notice of the Nairobi City County’s Surveyor’s ELC L CASE NO. E066 OF 2023 Page 4 of 19 Ruling

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report dated 31st January 2024, filed pursuant to this Court’s Orders issued on the 5th December 2023 directing that a survey on the disputed access road be carried out. She also contends that she is not a party to any dispute the Defendant may have with the administrators of the estate of her late sister, Hellen Wandia Waweru, the Lessor in respect of LR Nairobi Block 66/7141. 6. In response to the Plaintiff’s reply, the Defendant filed a supplementary affidavit. He insists that amendments to introduce a Counterclaim/Third party notice are necessary because at the time of entering the impugned Lease over LR Nairobi Block 66/7142, he was granted access by Hellen Wandia Waweru (now deceased), who was jointly registered with the Plaintiff as co-proprietors of Dagoretti/Riruta/2840, before it was subdivided into LR Nairobi Block 66/7141 and 7142 thus any loss he stands to suffer should be made good by the said co-proprietors. He points out that Agnes Mutunga alias Agnes Ndete Waweru, a ELC L CASE NO. E066 OF 2023 Page 5 of 19 Ruling

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child of Hellen Wandia Waweru (deceased) witnessed the impugned Lease, continues to and who collect rent from him after the Lessor’s demise thus there is need to comply with the Law of Succession Act. 7. He also insists that at the time the construction was undertaken on LR Nairobi Block 66/7142 in 2016, the said parcel was jointly registered in the names of the Respondent and her now late sister and they acquiesced construction of an ablution block on the disputed parcel, which if demolished will cause his tenants to vacate leading to loss of rental monthly income amounting to Kshs.155,000/=. 8. He contends that surveyors who prepared the survey report of 31st January 2024, that the Plaintiff seeks the Court to take judicial notice of, do not appear on the register of licensed surveyors thus the said report is inadmissible. He also claims that the suit property is valued at less than kshs.20 million thus jurisdiction over the matter lies with the Magistrate’s ELC L CASE NO. E066 OF 2023 Page 6 of 19 Ruling

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Court, where he could pay less filing fees compared to the matter being with this Court. 9. The application was canvassed by way of written submissions. Submissions 10. The Defendant submits that the Court has a wide discretion to freely allow amendments. Further, that he is entitled to pursue losses by way of a Counterclaim and or a Third Party Notice under Order 1 Rule 4 of the Civil Procedure Rules, insisting that because of the Plaintiff’s and the Lessor’s acquiescence, he stands to suffer loss. He submits that the Plaintiff is guilty of laches because she stood by for over eight (8) years while he expended money on his interest in LR Nairobi Block 66/7142, without asserting her alleged rights. He also contends that failure to join Agnes Mutungu, the Lessor’s daughter to these proceedings would leave unresolved ELC L CASE NO. E066 OF 2023 Page 7 of 19 Ruling

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questions of indemnity, contribution and the validity of rental payments and would require him to institute separate proceedings. 11. On transfer of the suit to the Magistrates’ Court, he submits that maintaining proceedings in this Court imposes a disproportionate financial burden on him. He also insists that the report dated 31st January 2024, which indicates that his ablution block is built on a road reserve is defective and inadmissible. 12. To buttress his averments, the Defendant relied on several authorities including: Central Kenya Limited v Trust Bank Limited & 5 Others [2000] eKLR, Institute for Social Accountability & another v Parliament of Kenya& 3 others [2014] eKLR, AAT Holdings Ltd v Diamond Shields International Limited [2014] eKLR, and Willy Kimitai Kitilit v Michael Kibet [2018] eKLR. ELC L CASE NO. E066 OF 2023 Page 8 of 19 Ruling

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13. On her part, the Plaintiff submits that the amendments sought if allowed will be prejudicial to her as they will fundamentally alter the character of the suit by introducing a Counter-claim two and a half years after a defence was filed. Further, that the Defendant seeks to shift the claim on encroachment on an access road to a tenancy issue while she continues to suffer an injustice that cannot be compensated with costs as she is unable to access her property, which is the real question in controversy. On the Defendant seeking leave to file a aThird party notice, she submits that any dispute arising from the Defendant’s tenancy on LR Nairobi Block 66/7142 is separate from her claim concerning obstruction of the road, hindering access to her property. 14. On the contention that the report dated 31st January 2024 is inadmissible, she submits that the Defendant actively participated in the Court-ordered survey process thus he is estopped from rejecting it because the findings do not favour him, adding that there is no evidence that would contradict ELC L CASE NO. E066 OF 2023 Page 9 of 19 Ruling

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the report either. She also submits that the Defendant cannot acquire rights of a public road merely through occupation or any lease entered into, insisting that public land cannot be alienated through conduct, acquiescence or delay. 15. On the issue of transfer of this matter to the Magistrate’s Court, she submits that jurisdiction extends beyond pecuniary considerations and extends to other considerations raised in the matter, which includes boundaries, easements and access rights that this Court has jurisdiction to determine. 16. To buttress her averments, the Plaintiff relied on the case of Kanawal Sarjit Singh Dhim v Keshavji Jivraj Shah [2010] eKLR. Analysis and Determination ELC L CASE NO. E066 OF 2023 Page 10 of 19 Ruling

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17. Upon consideration of the instant Notice of Motion application including the respective affidavits and rivalling submissions, the following are the issues for determination:  Whether the Defendant should be granted leave to amend his Statement of Defence and file a Counterclaim or a Third Party Notice including additional witness statements and to summon officers from the County Survey and Physical Planning Departments.  Whether the matter ought to be transferred to the Chief Magistrate's Court on account of the alleged value of the suit property being below Kshs.20 million. 18. The Defendant seeks leave to amend his statement of defence and to file a Counterclaim or a Third Party Notice, additional witness statements including lease, tenancy records, planning and subdivision records as well as survey documents. He also seeks to summon officers from the ELC L CASE NO. E066 OF 2023 Page 11 of 19 Ruling

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County Survey and Physical Planning Departments to testify. He contends that while filing this suit on his behalf, his previous advocates omitted several documents relating to his Lease over LR Nairobi Block 66/7142, which he entered into with the Plaintiff’s sister, one Hellen Wandia Waweru( now deceased), whose estate he now seeks to introduce alleging liability for losses he is likely to incur, on the basis that the said deceased Lessor and the Plaintiff who were jointly registered as proprietors of Dagoretti/Riruta/2840 before subdivision to the Plaintiff’s LR Nairobi 66/7141 Block 66/7142 respectively, acquiesced to his which and LR he holds Nairobi Block a over, lease construction on the disputed portion of land that the Plaintiff now claims to be a public access road. 19. In response, the Plaintiff avers that her case is that the Defendant has encroached upon and obstructed a public access road leading to her plot, LR Nairobi Block 66/7141. She insists that she has no interest in the Defendant's Lease ELC L CASE NO. E066 OF 2023 Page 12 of 19 Ruling

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over LR Nairobi Block 66/7142, thus allowing the amendments sought introduces extraneous issues relating to the said lease which changes the character of the suit and therefore prejudices her. 20. On amendment of pleadings, Order 8 Rule 3 (1) and (2) of the Civil Procedure Rules provides that: “(1) 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 otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings. (2) Where an application to the court for leave to make an amendment such as is mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just so to do.” ELC L CASE NO. E066 OF 2023 Page 13 of 19 Ruling

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21. Further, Order 8 Rule 5 of the Civil Procedure Rules provides as follows: “(1) For purposes of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.” 22. In Tarmohamed v Mariakani Holdings Limited & Another [2022] KECA 122 (KLR), the Court of Appeal stated as follows on amendment of pleadings; “….rules that apply to amendment of pleadings will apply, namely that amendments should be liberally allowed, if they can be made without injustice to the other side, or where such injustice can be compensated by costs.” ELC L CASE NO. E066 OF 2023 Page 14 of 19 Ruling

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23. See also the case of Joseph Ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago [1995] eKLR. 24. On perusal of the Plaint, I note the main issue in controversy is the encroachment on a public road which interferes with Plaintiff’s access to her property. The Defendant has filed the instant application seeking leave to amend his Defence to include a Counterclaim and to issue Third Party Notice. He has further sought to file additional witness statements including documents in respect to a Lease on an adjacent parcel of land. Order 1 Rule 15 of the Civil Procedure Rules provides that a party can apply for leave to issue a ThirdParty notice within fourteen (14) days after close of pleadings. 25. In this instance, insofar as an amendment of pleadings can be allowed at any time, I opine that the issues which the Defendant has raised touch on a Lease which is not in ELC L CASE NO. E066 OF 2023 Page 15 of 19 Ruling

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respect to the access road in dispute. Further, it is my considered view that since he leased the land from a different person other than the Plaintiff, noting that a Surveyor vide a report dated 31st January, 2024 pursuant to a Court Order, found that indeed the Defendant had encroached on a portion of the public road accessing Plaintiff’s property; and insofar as the Defendant now seeks to cast aspersions on the report, noting that both parties participated when the Surveyor was undertaking measurements of the alleged encroachment, in my view, I find that he has not laid the basis for filing a Counterclaim. 26. I opine that intended Counterclaim, cannot be used as a mechanism to introduce an independent claim against a party not already before the Court. I further find that since the Defendant confirmed that he filed his Defence on the 7 th December, 2023, his prayer to be allowed to issue a Third Party Notice is outside the stipulated statutory period ELC L CASE NO. E066 OF 2023 Page 16 of 19 Ruling

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required for issuance of the said notice to the daughter of the deceased Lessor. 27.In the foregoing, I find that the said application for leave to amend the Defence to include a Counterclaim and issue a Third Party Notice is simply geared to delay this matter further, and I will decline to grant leave. Further, I find that since the Defendant filed his Defence in December, 2023, participated in pretrial conference after which the matter had even been set down for hearing, seeking to file additional documents and witness statements will simply delay this matter and will decline to allow this prayer. 28. On the second issue, the Defendant contends that the suit property is modest, valued at less than Kshs.20 million and therefore the matter ought to be heard by the Chief Magistrate's Court, as continuing the matter before this Court imposes unnecessary financial burden upon him. The Plaintiff has opposed ELC L CASE NO. E066 OF 2023 Page 17 of 19 the transfer on the Ruling basis that

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jurisdiction cannot be determined solely by reference to the alleged monetary value because the dispute concerns boundaries, easements and access rights, which this Court has jurisdiction to determine. Except for the Defendant’s averments, he has not furnished Court with any valuation report to demonstrate value of the suit property. Further, I note the Plaintiff has also sought for other prayers in the Plaint. In the circumstances, I will decline to transfer this matter to the Chief Magistrates’ Court for final disposal. 29. In the foregoing, I find the instant Notice of Motion application unmerited and will proceed to dismiss it with costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 22ND DAY OF SEPTEMBER, 2026 CHRISTINE OCHIENG JUDGE In the presence of: ELC L CASE NO. E066 OF 2023 Page 18 of 19 Ruling

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Ms Mungai holding brief for Wanjiru for Defendant Theuri for Plaintiff Court Assistant: Joan ELC L CASE NO. E066 OF 2023 Page 19 of 19 Ruling

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