Ethics and Anti-Corruption Commission v Midlands Limited & another; Mureithi (Interested Party) (Environment & Land Case 381 of 2017)  KEELC 16044 (KLR) (9 March 2023) (Ruling)
Neutral citation:  KEELC 16044 (KLR)
Republic of Kenya
Environment & Land Case 381 of 2017
YM Angima, J
March 9, 2023
Ethics and Anti-Corruption Commission
Lilian Wangiri Njenga
Naphtali Mungai Mureithi
1.By a plaint dated 04.02.2013 the Plaintiff sought, inter alia, recovery of various land parcels comprised in Title Nos. Nyadarua/Njabini/6087, 6088, 6089, 6090, 6091 & 6092 which were said to have been irregularly, fraudulently and illegally excised from the original parcel No. Nyandarua/Njabini/530 which was said to be public property then vested in Settlement Fund Trustees (SFT) in trust for Njabini Agricultural Training Centre (the Centre), a public institution which was in occupation of the said land at all material times.
2.It was pleaded that the 2nd Defendant who was then the Director of Land Adjudication & Settlement had illegally, fraudulently and in abuse of her office as a public officer allocated the land in issue to the 1st Defendant without the consent of the Minister responsible for Agriculture as stipulated under the Agriculture Act (Cap. 318) whereas the said land was not available for allocation in any event.
B. The Plaintiff’s Instant Application
3.Whilst the suit was pending and part heard before 2 different Judges the Plaintiff filed a notice of motion dated 15.09.2022 grounded upon Sections 1A, 1B & 3A of the Civil Procedure Act (Cap. 21), Order 8 Rules 3, 5 & 8 and Order 51 rule 1 of the Civil Procedure Rules, 2010 (the Rules), and all other enabling provisions of the law seeking the following orders:a.That the Plaintiff/applicant be granted leave to amend its plaint in the manner set out in the amended plaint annexed to this application and marked BWK-4.b.That subject to the outcome of prayer (1) above, the amended plaint annexed to this application and marked BWK-4 be deemed to be duly filed and served on the 1st and the 2nd Defendants/respondents and the interested party.c.That subject to the outcome of prayer (1) above, this honourable court be pleased to order that the amended plaint be served upon the institutions the Plaintiff seeks to join to this suit through this application namely, Land Settlement Fund Board of Trustees and Equity Bank, within fifteen (15) days or such time as the court may deem fit in the circumstances of this case.d.That subject to the outcome of prayer (1) and (3) above, this honourable court be pleased to order that the institution intended to be joined in this suit through this application namely Land Settlement Fund Board of Trustees and Equity Bank do enter appearance and file their respective statements of defence to the Plaintiff/applicant’s amended plaint within fifteen (15) days of service or such time as the court may deem fit in the circumstances of this case.e.That this honourable court be pleased to give such other orders or directions as may be fit and just in the circumstances of this case.
4.The application was based upon the grounds set out on the face of the motion and the contents of the supporting affidavit sworn by Benson Wambua Kyeli on 15.09.2022 and the exhibits thereto. The Plaintiff asserted that the Land Settlement Fund Board of Trustees (LSFBT) was the successor of the SFT which was the registered proprietor of the suit properties prior to their alienation to the 1st Defendant. It was contended that the SFT was not holding the suit properties as absolute owner but in trust for the Centre.
5.The Plaintiff further contended that the suit properties were charged to Equity Bank Ltd hence the bank was a necessary party to the proceedings as it has an interest in the properties. The Plaintiff was thus of the view that the joinder of the said parties would assist the court to effectually and completely adjudicate all the issues raised in the suit.
C. The Defendants’ Response
6.The Defendants did not file any replying affidavit to dispute the factual foundation of the Plaintiff’s application. However, the 2nd Defendant filed grounds of opposition dated 28.09.2022 raising the following grounds.a.The application has been filed outside 60 days within which it was to be filed following directions of the court given on 15th June, 2022 without an explanation being offered.b.The annexed amended plaint does not disclose any cause of action that is not already addressed and/or pleaded in the plaint.c.The annexed amended plaint does not disclose any specific relief sought against the proposed 3rd Defendant.d.Allowing the application will further convolute the issues in the matter and delay the determination of the suit that is already part-heard.e.The application is frivolous and an abuse of the court process as it has been filed in bad faith so as to bridge gaps which were formed during cross examination of witnesses who have testified.
D. Directions on Submissions
7.When the application was listed for inter partes hearing it was directed that the same shall be canvassed through written submissions. The parties were consequently granted timelines within which to file and exchange their respective submissions. The record shows that the Plaintiff’s submissions were filed on 03.10.2022 whereas the 2nd Defendant’s submissions were filed on 24.10.2022. The 1st Defendant and the Interested Party did not file any submissions to the application.
E. The Issues for Determination
8.The court has perused the Plaintiff’s notice of motion dated 15.09.2022, the 2nd Defendant’s grounds of opposition as well as the material on record. The court is of the opinion that the main question for determination is whether the Plaintiff has made out a case for leave to amend the plaint and join the proposed Defendants in the suit.
F. Analysis and Determination
9.Order 8 rule 3(1) of the Rules on amendment of pleadings stipulates as follows:
10.On the other hand, Order 8 of the Rules provides that:
11.The principles to be considered in granting or refusing an application for leave to amend pleadings were re-stated in the case of Eastern Bakery –vs- Castellino  EA 461 at 462 as follows:
12.Similarly, in the case of Central Kenya Ltd –vs- Trust Bank Ltd & 5 Others  eKLR the Court of Appeal considered the principles as follows:
13.The Court of Appeal considered the issue of joinder of parties in the case of JMK –vs- MWM and Another  eKLR as follows:
14.The issue of who is a necessary party was considered in the case of Pizza Harvest Ltd. –vs- Felix Midigo  eKLR where the court held that:
15.Similarly, in the case of Civicon Limited –vs- Kivuwatt Limited & 2 Others  eKLR it was held, inter alia, that:
16.The court is satisfied on the basis of the pleadings and the material on record that the Plaintiff has made out a case for the grant of leave to amend the plaint as sought in the application. The 2nd Defendant did not file any affidavit to demonstrate that it shall suffer any prejudice which cannot be adequately compensated by an award of costs. It has not been demonstrated that the application was brought in bad faith. The mere fact that there was delay in filing the instant application cannot be sufficient reason to refuse an amendment. The fact that the suit is part-heard cannot, by itself, preclude a party from seeking amendment of pleadings or joinder of additional parties. See General Manager East African Railways and Harbours Corporation –vs- Thierstein  EA 354. The court has noted that the Plaintiff is yet to close its case and Defendants are yet to testify.
17.The court is equally satisfied that the Plaintiff has made out a case for joinder of the proposed 3rd and 4th Defendants to the suit. There is no doubt from the material on record that the SFT was the registered proprietor of the properties the subject of the suit prior to allocation of the same to the 1st Defendant. The capacity in which it was holding the suit properties is one of the issues for determination in the suit. The legality of the allocation is also one of the issues for determination in this suit. The court is thus of the opinion that successor of the SFT is a necessary party to the proceedings.
18.The court is further of the opinion that it is necessary to join Equity Bank Ltd as a party because it appears to be holder of a charge with respect to the suit properties or some of them. A charge is a legal interest intended to secure the payment of money or money’s worth. It is, therefore, evident that if the suit were to proceed to conclusion in the absence of the chargee, its legal interest may be adversely affected in violation of the rules of natural justice. There is also a risk that the chargee may not be bound by the outcome of the suit. The court is thus satisfied that Equity Bank Ltd is a necessary party to the proceedings.
19.The court has considered the 2nd Defendant’s objection to the application on the basis that it was filed outside the 60 days granted by the court on 15.06.2020. The court is of the opinion that the same is merely a technical objection which is curable under Article 159(2)(d) of the Constitution of Kenya, 2010 and Section 19(1) of the ELC Act, 2011. It does not require further consideration. However, for the avoidance of doubt on the competence of the application the period of 60 days is hereby extended by a further 30 days.
G. Conclusion and Disposal OrdersOrders accordingly.
20.The upshot of the foregoing is that the court finds merit in the Plaintiff’s application dated 15.09.2022. Consequently, the same is hereby allowed in the following terms:a.Leave be and is hereby granted to the Plaintiff to amend the plaint and to join the Land Settlement Fund Board of Trustees and Equity Bank Ltd as Defendants.b.The draft amended plaint annexed to the Plaintiff’s application is deemed as duly filed and served upon the 1st and 2nd Defendants and the Interested Party.c.The Plaintiff shall serve the amended plaint upon the 3rd and 4th Defendants within 10 days from the date hereof.d.The 3rd and 4th Defendants shall enter appearance to the suit within 14 days upon service of the amended plaint and thereafter file their pleadings within 14 days upon entry of appearance.e.The Plaintiff shall be at liberty to file a reply to the 3rd and 4th Defendants’ pleadings within 7 days upon service by them.f.The 2nd Defendant is hereby awarded costs of the application.g.Mention on 11.05.2023 for directions on the hearing of the suit.
RULING DATED AND SIGNED AT NYAHURURU AND DELIVERED VIA MICROSOFT TEAMS PLATFORM THIS 9TH DAY OF MARCH, 2023.In the presence of:N/A for the PlaintiffMs. Muchiri for the 1st DefendantMr. Solomon Opole holding brief for Mr. Musyoka for the 2nd DefendantN/A for the Interested PartyC/A - CarolY. M. ANGIMAJUDGE