[2022] KEHC 3274 (KLR)

Aecom Roa (Pty) Limited v Kenya National Highways Authority (Civil Suit 309 of 2017) [2022] KEHC 3274 (KLR) (Commercial and Tax) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 3274 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit 309 of 2017

A Mshila, J

July 15, 2022

Between

Aecom ROA(Pty) Limited

Plaintiff

and

Kenya National Highways Authority

Defendant

Ruling

Background 1. The Notice of Motion dated 29th January 2021 was brought Pursuant to Section IA, 1B, 3A and 63 (e) of the Civil Procedure Act, Order 8 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules. The Applicant sought the following orders;a.The court to grant the Defendant/ Applicant leave to amend its Statement of Defence & Counterclaim in terms of the attached Amended Statement of Defence.b.Costs of this Application be provided for.

2. The Application was supported by the sworn Affidavit of Jessica Mbae who stated that after the filing and service of the Statement of Defence & Counterclaim, the Defendant wishes to amend the Statement of Defence & Counterclaim to incorporate the grounds adduced in the Counterclaim in the Statement of Defence and further particularize the amounts sought by the Defendant in the counterclaim which amendments are necessary and material to the proper and substantial determination of the dispute herein.

3. The proposed amendment will enable the Court determine the real dispute between the parties and do justice in this matter. The amendment is proposed in good faith and the Plaintiff will not suffer any prejudice as a result of the amendment as the contents of the amendments were at all times material part of the pleadings and known to the Plaintiff.

4. The Respondent filed Grounds of Opposition dated 23rd April 2021 on the following grounds;a.There has been more than inordinate delay in filing the Application in that the matter has gone through a case management conference and the suit certified ready for trial.b.The Application is a delaying tactic that will ultimately defer the substantive hearing of this suit and thereby occasion manifest prejudice upon the Plaintiff.c.The Application is brought in bad faith as the nature of the proposed amendments are not necessary to determine the real issues in contention between the parties. Allowing the Application would in fact muddle the issues in dispute between the parties and ultimately detract the Court from its overriding duty to facilitate the just, expeditious, proportionate and affordable resolution of the dispute between the parties.d.The Application is vexatious and in abuse of process of the Court as it raises technical points and proposes superficial amendments which are irrelevant and unnecessary to the proceedings.

Applicant’s Case 5. The Applicant submitted that Order 8 Rule 5 (1) of the Civil Procedure Rules gives the court a wide discretion as far as amendment of pleadings is concerned. Therefore, for the purpose of determining the real question in controversy between the parties or 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 a manner as it directs as to costs or otherwise as are just.

6. The above position was restated by the Court of Appeal in the case of Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] eKLR where it stated that the overriding consideration in applications for such leave is whether the amendments are necessary for the just determination of the controversy between the parties and that mere delay is not a ground for declining to grant leave.

7. It was the Applicant’s case in its letter dated 24th October 2016 that it was not contractually obligated to carry out 'detailed engineering designs' and was required to submit 'preliminary designs' as the reason for refusal to honour the terms of the agreement between it and the Defendant and yet at all times material to the project the Defendant contracted the Plaintiff to submit detailed designs and even in the Defendants letter dated 13th February, 2015 to the African Development Bank, the Defendant requested for 'No Objection' for a variation of the contract sum to enable the Plaintiff complete 'detailed engineering designs'.

8. Further, it was the breach by the Plaintiff in failing to perform its contractual obligations to submit 'detailed engineering designs' as demonstrated above which led the Defendant to refuse to pay the contractual sum which issue the Defendant needs to plead in its Defence in order for the real question in dispute to be determined by the Court.

9. It was the Applicant’s submissions that, the application is merited as the issue of performance of the contract is pertinent to the court determining the real questions in dispute to effectually and completely adjudicate and settle all questions in dispute involved and thus the Application meets the required standard in Order 8 Rule 5 (1) of the Civil Procedure Rules and ought to be allowed as prayed.

Respondent’s Case 10. It was the Respondent’s case that the exercise of the power granted to the court to permit the amendment of pleadings under the Civil Procedure Rules is discretionary which discretion is to be exercised within the four corners of the enabling provision. In this regard, an application for amendment of pleadings ought to be permitted where the amendment is necessary for determination of the real questions in issue or for rectification purposes.

11. The Court ought to consider various factors to inform the judicious exercise of the discretionary power. In Kampala Coach Limited vs. First Community Bank & another [2016] eKLR the court affirmed principles espoused in jurisprudence which provide that for an application for amendment pleadings to be successful the following factors should be considered:i.whether the application was filed without inordinate and undue delay;ii.whether the proposed amendments are necessary for the determination of the real issues in controversy between the parties; andiii.whether a party will suffer injustice because of the application being permitted

12. The Respondent argued that the Application has been filed nearly four years after the main suit was filed and further, after the matter had been certified ready for hearing following a case management conference. Further, the Applicant made no attempt, either in its Application or the accompanying Supporting Affidavit, to provide any reason whatsoever for the inordinate delay. It is evident from the circumstances that this Application was an afterthought, the only feasible outcome being the further delay of the proceedings beyond that already endured by the Respondent.

13. The Respondent submitted that where leave is sought to amend pleadings, the proposed amendments ought to be necessary for the proper determination of the real issues in controversy between the parties. The proposed amendments are superficial and stylistic in nature and fall short of the criteria of necessity.

14. Further, that the Applicant stated in the Application that the proposed amendments are necessary for the purpose of further particularizing the amounts sought in the Counterclaim. Instructively, no such particulars are provided and rather, the amendment states that the ‘particulars will be made available during trial’. On the strength that no additional information is provided and that the amendments do not add any colour to the issues in controversy, these amendments cannot be deemed as necessary.

15. The Application must fail as the amendments do not alter the facts or the basis of the Defendant’s defence or counterclaim in a way that can be deemed necessary to determine the substantive merits of the case.

Issues For Determination 16. After considering the Application, Grounds of Opposition and the submissions by the respective parties; there is only one issue framed for determination;a.Whether the Applicant should be granted leave to amend its Statement of Defence & Counterclaim in terms of the attached Amended Statement of Defence?

Analysis 17. The provisions that govern amendment of pleadings is provided under Section 100 of the Civil Procedure Act, which states that: -“The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding”.

18. The procedural provisions that supports the aforesaid provisions are provided for under Order 8 Rule 3 of the Civil Procedure Rules which states: -“(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 sub-rule (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 sub-rule if it thinks just so to do.(3)An amendment to correct the name of a party may be allowed under sub-rule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.(4)An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under sub-rule (2) if the capacity in which the party will sue is one in which at the date of filing of the plaint or counterclaim, he could have sued.(5)An amendment may be allowed under sub-rule (2) notwithstanding that its effect will he to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.

19. The amendment of pleadings meant to bring about the final adjudication in a suit and to avoid multiplicity of pleadings. In the case of Harrison C. Kamau vs Blue Shield Insurance Co. Ltd [2006] eKLR, the court stated that: -“the amendments of pleadings…..(is) aimed at allowing a litigant to plead the whole of the claim he (is) entitled to make in respect of his cause of action. A party would be allowed to make such amendments of pleadings as (are) necessary for determining the real issue in controversy or avoiding a multiplicity of suits, provided:(i)There has been no undue delay;(ii)No new inconsistent cause of action (is) introduced;(iii)No vested interest or accrued legal right (is) affected; and(iv)The amendment (can) be allowed without injustice to the other side……”

20. Has there been no undue delay? The statement of defence and counterclaim dated 1st September 2017 and the amendment brought on 29th January 2021. This is a period of about 4 years and thus cannot be said that has been no undue delay. The delay was not explained by the Defendant.

21. No new inconsistent cause of action (is) introduced – the Court has carefully perused the amendments made and the said amendments elaborate on the issues already raised by the Defendant as done in paragraphs 11 to 14. The amendments do not introduce any new inconsistent cause of action.

22. No vested interest or accrued legal right (is) affected andcan the amendment be allowed without injustice to the other side – being that there has been no introduction of new inconsistent cause of action; the Plaintiff’s accrued legal interest is not affected. The Plaintiff did not demonstrate that any injustice will be caused to them by the proposed amendments.

23. This was reiterated in the case of Joseph Ochieng & 2 Others v First National Bank of Chicago, Civil Appeal No. 149 of 1991 the court held;“The ratio that emerges out of what was quoted from the said book is that powers of the court to allow amendment is to determine the true, substantive merits of the case; amendments should be timeously applied for; power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages); that as a general rule, however late, the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side”

24. The upshot of this matter is that even though the Case Management Conference had been conducted; it is in the greater interest of justice to allow the amendment so that the suit can be heard on merits.

Findings And Determination 25. In the light of the forgoing this court makes the following findings and determinations;i.The application is found to have merit and it is hereby allowed;ii.The Defendant/Applicant is hereby granted leave to amend its Statement of Defence & Counterclaim in terms of the attached Amended Statement of Defence within fifteen (15) days from the date hereof;iii.The Respondent is granted leave to file an Amended Defence to the Counterclaim within fifteen (15) days of service;iv.Costs of this Application shall be borne by the Applicant.v.Mention on 15th August, 2022 before the Deputy Registrar for Compliance and further Case Management.Orders Accordingly

DATED SIGNED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 15THDAY OF JULY, 2022. HON. A. MSHILAJUDGEIn the presence of;Akal for the plaintiff/RespondentNo appearance for the defendant/ApplicantLucy---------------------------Court Assistant