[2014] KEHC 1763 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NUMBER 248 OF 2006

CHEVRON KENYA LIMITED.

(FORMERLY CALTEX OIL KENYA LIMITED. ……………………PLAINTIFF

VERSUS

MUVIR HOLDINGS LIMITED. ………………………...…....1ST DEFENDANT

CITY COUNCIL OF NAIROBI. ……………………….….....2ND DEFENDANT

R U L I N G

The 1st Defendant, Muvir Holdings Limited sought leave of court to amend further its Amended 1st Defendant’s Defence and the Counter-claim, so that it could also enjoin one total Kenya limited as the 3rd Defendant in the Counter-claim. It was noted the said 1st Defendant had from time to time during the Plaintiff’s case, warned that it might at the close of the Plaintiff’s case, apply to seek amendments for the purpose of enjoining the said Total Kenya Limited as a party, particularly to the Counter-claim.

At or towards the close of the Plaintiff’s case, the 1st Defendant filed and served the draft of the proposed amendments which incidentally, were also served upon the said Total Kenya Limited. The latter instructed Mr. Alex Thangei of the firm of Waruhiu, Kowade & Ng’ang’a Advocates to represent them.

By a consent signed by the Plaintiff’s the Defendants and the intended 3rd Defendant to the Counter-claim, Total Kenya Limited, dated 4th October, 2014, the said Total Kenya Limited was enjoined into this case as the 3rd Defendant to the Amended Counter-claim. The Amended 1st Defendant’s Defence was also by said Consent and leave of court, further amended as shown in the Draft amendments.

This court and the parties were accordingly satisfied that the said amendments and enjoinment of the 3rd Defendant to the suit was necessary for the purpose of enabling the court to determine finally the really questions or issues in controversy between the parties now in the suit. The amendment, accordingly was within the principle stated by the Court of Appeal in Central Kenya Ltd Vs Trust Bank Ltd & Others [2000] 2EA, 365, wherein it expressed was that all amendments should be freely allowed and at any stage of the proceedings, provided the amendment or joinder, as the case may be, will not result in prejudice or injustice to the other party which cannot be compensated for in costs. Needless to say, in this case each party was satisfied that no such prejudice existed, hence the basis for allowing the amendment with the parties’ consent.

The amendment however provoked the issue that the new party who had recently been served with the Counter-claim required sufficient time to enter defence thereto and file all the now relevant documents, bundles, statements of evidence and other material to enable it fully and properly participate in the trial with a fair opportunity to defend itself against the claim from the 1st Defendant. Both sides left the issue to this court after addressing it in their brief submissions.

I have carefully considered the mater. I have no doubt in my mind that the 3rd Defendant should be given adequate opportunity and time to enter defence to the Counter-claim and file all the necessary documents for the trial and in particular, for its defence. It sought a period of 30 days. The 1st Defendant submitted however, that seven days were adequate in the circumstances of this case. Those circumstances as the court understands them from the submissions made by the parties are and include the facts that Total Kenya Limited is and has all along during the trial, been aware of the facts and evidence on the record. That, that is because the two witnesses who so far gave evidence for the plaintiff were both employees and servants of the 3rd Defendant. That through the said witnesses, Total Kenya Ltd claimed to have ceased to exist on being purchased and/or taken over by total marketing Kenya Limited who is already a party – the 2nd Defendant in this suit. And that in any case, the 1st Defendant herein from time to time during the Plaintiff’s case, warned the Plaintiff that Total Kenya Limited might and would be joined as party in this suit since the separate existence of the Plaintiff and the 1st, 2nd and 3rd Defendants in the Counter-claim was more likely to be the truth than otherwise.

I have considered the above circumstances after taking into account the provisions of Order 1 rule 7 and Rule 10; Order 7 Rules 10 and Order 8 Rules (2) and (5). In the view of the court, the 3rd Defendant is in reality not a new party to these proceedings and the evidence already on the record in particular. This is because the Plaintiff’s witnesses who are the source of the evidence on record may likely be the ones, if necessary who are going to testify for the 3rd Defendant. Furthermore, the Plaintiff posture in this case, was that the Defendants in the Counter-claim who include the 3rd Defendant were one and same company in the sense that each one company was taken over or wholly purchased by the other until the present Plaintiff came into being.

Finally, in view of the fact that the trial of this suit is about half completed and that it was being heard on priority basis as old case which should be cleared off our shelves, it is my decision nevertheless that the 30 days sought for entering defence and preparing the defence case, are not too many. On the other hand, the question of treating the entry of the 3rd Defendant as a totally new practical occurrence and seeking for fresh trial cannot be granted in the circumstances tabulated above.

The result then is as follows: -

The 3rd Defendant shall file its defence to the Counter Claim within 7 days without extension.

The Defendants in the main suit shall file a reply, if any within 7 days of service of the Defence of the 3rd Defendant.

The 3rd Defendant shall file its witness statements, witness list, bundles and documents within 7 days after service of replies to defence.

A second Pre-trial shall take place 7 days of the filing of the Documents under Order II.

Further hearing and the defence of the 1st and 2nd Defendants together with their Counter-claim case evidence shall start on 9th & 10th December, 2014 which shall be about 7 days after the close of pleadings to Counter-claim.

The costs of the amendments shall be in the cause.

Orders accordingly.

Dated and Delivered at Nairobi this 10th day of November, 2014.

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D A ONYANCHA

JUDGE