[2024] KEHC 1290 (KLR)
The court held that the plaintiffs were within their rights to seek amendment of their plaint, as the matter had not yet proceeded to trial and the proposed changes did not introduce an entirely new cause of action but rather clarified and quantified existing prayers. The court found no evidence that the defendants...
Source-derived case information.
- Citation
- [2024] KEHC 1290 (KLR)
- Parties
- Plaintiff: Bulle Diis Adan; Plaintiff: Maqbull Industries Company Limited; Defendant: The Commissioner-General Kenya Revenue Authority; Defendant: The Attorney-General
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Suit E004 of 2021
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application for Amendment of Pleadings and Calling of Expert Witness
- Outcome
- Application allowed as prayed in prayers 1, 2, and 3. Costs to abide the outcome of the suit.
- Judges
- WM Musyoka
- Legal Topics
- Amendment of Pleadings, Expert Evidence, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bulle Diis Adan
Plaintiff
Maqbull Industries Company Limited
Plaintiff
The Commissioner-General Kenya Revenue Authority
Defendant
The Attorney-General
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application for Amendment of Pleadings and Calling of Expert Witness
Legal Issues
- 1 Whether the plaintiffs should be granted leave to amend their plaint at this stage of proceedings.
- 2 Whether the plaintiffs require leave of court to call an expert witness.
- 3 Whether the proposed amendments would cause prejudice or hardship to the defendants.
Ratio Decidendi
The court held that the plaintiffs were within their rights to seek amendment of their plaint, as the matter had not yet proceeded to trial and the proposed changes did not introduce an entirely new cause of action but rather clarified and quantified existing prayers. The court found no evidence that the defendants would suffer hardship that could not be remedied by costs. Regarding the request to call an expert witness, the court clarified that parties do not require leave to call witnesses necessary for their case, except for the issuance of witness summonses if needed. Consequently, the court allowed the application as prayed in prayers 1, 2, and 3, subject to payment of requisite...
Court Disposition
Application allowed as prayed in prayers 1, 2, and 3. Costs to abide the outcome of the suit.
Orders
- Leave granted to amend the plaint as per the application dated 26th October 2023.
- Plaintiffs to pay requisite court fees for the re-amended plaint within 30 days.
Full Case Text
Judgment text and source record
27 paragraphs
Adan & another v Commissioner-General Kenya Revenue Authority & another (Civil Suit E004 of 2021) [2024] KEHC 1290 (KLR) (16 February 2024) (Ruling)
Neutral citation: [2024] KEHC 1290 (KLR)
Republic of Kenya
In the High Court at Busia
Civil Suit E004 of 2021
WM Musyoka, J
February 16, 2024
Between
Bulle Diis Adan
1st Plaintiff
Maqbull Industries Company Limited
2nd Plaintiff
and
The Commissioner-General Kenya Revenue Authority
1st Defendant
The Attorney-General
2nd Defendant
Ruling
1. I am called upon to determine a Motion, dated 26th October 2023. It seeks orders related to amendment of pleadings, and the calling of an expert witness. It is averred that the amendment was necessitated by a discovery made after certain documents were served on the plaintiffs on 17th October 2023, when the matter was coming up for hearing. A copy of the plaint is attached, exhibiting the proposed amendments.
2. The response is by an officer of the 1st defendant. He substantially acknowledges that there is liberty by a party to amend its pleadings at any time. However, he urges the court to note that there has been delay in the disposal of the matter, occasioned by a number of things done by the plaintiffs. One, he says that they sought time to have their plaint amended, and the amendments sought now are the second. Two, whenever the matter comes up for hearing, the plaintiffs always adjourn the matter. He also argues that the amendments sought substantially change the character of the suit, and are in abuse of court process.
3. The plaintiffs filed a rejoinder, essentially saying that the amendments were necessitated by documents that the defendants placed on record at the last minute, on the date when the matter was coming up for hearing.
4. The application was canvassed by way of written submissions. Both sides filed submissions, supported by authorities.
5. Applications to amend pleadings are usually allowed by the court as a matter of course. That is so as there is general discretion given to the courts, to allow amendments, in the interests of justice, and to facilitate a comprehensive determination of the dispute before the court. There are few exceptions, where the court may deny an application for amendment. The first is where hardship is likely to be caused to the other party, which cannot be remedied by way of costs. The second is where the amendment sought introduces a totally new cause of action, which is alien to the existing cause, and in respect of which a separate suit ought to be filed. The other would be where the proposed amendment is being made too late in the day.
6. So, the plaintiffs are within their rights to seek to make the amendments in question. This matter is yet to go to trial, and, therefore, it would not be too late to amend pleadings. Looking at the proposed changes, it would appear that the material being introduced is not alien to the existing cause. It only introduces one new prayer, for compensation, with respect to legal and filing fees. The other changes affect existing prayers, and relate to quantification. In my view, the introduced material aligns with what is already pleaded in the plaint. The defendants have not alleged that they would be exposed to hardship, which may require to be remedied by way of costs.
7. The plaintiffs pray for leave to call an expert witness. Parties are at liberty to call such witnesses as are necessary to prove the allegations made in their pleadings. I do not think there would be need for leave to call a witness. The only assistance a party may require from court, with respect to calling witnesses, would be issuance of witness summonses where need arises.
8. I shall, accordingly, allow the application, dated 26th October 2023, as prayed in prayers 1, 2 and 3. Costs shall abide the outcome of the suit. Let the requisite court fees, with respect to the re-amended plaint, be paid within 30 days. The matter shall be mentioned, for compliance and allocation of a hearing date, on 23rd April, 2024. Orders accordingly.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 16TH DAY OF FEBRUARY 2024WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.Advocates:Mr. Ashioya, instructed by Ashioya & Company, Advocates for the plaintiffs.Mr. Leparan Lemiso, Advocate for the defendants.