[2010] KEHC 1288 (KLR)
The court found that the application to amend the defence to include a plea of limitation was brought too late in the proceedings without sufficient justification. The issue of limitation had already been raised and addressed in a prior ruling by Kubo J., who held that it was a matter for evidence at trial. The...
Source-derived case information.
- Citation
- [2010] KEHC 1288 (KLR)
- Parties
- Plaintiff: Christopher Kagema Gichuhi; Defendant: Benson Irungi Mbaria; Defendant: Rosemary Wanjiku Mbaria
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2207 of 1998
- Procedural Posture
- Civil Suit / Ruling on Application to Amend Defence and Preliminary Objection
- Outcome
- application dismissed; preliminary objection upheld
- Legal Topics
- Amendment of Pleadings, Limitation of Actions, Preliminary Objection, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Kagema Gichuhi
Plaintiff
Benson Irungi Mbaria
Defendant
Rosemary Wanjiku Mbaria
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Amend Defence and Preliminary Objection
Legal Issues
- 1 Whether the defendants should be granted leave to amend their defence to include a plea of limitation of action under the Government Lands Act and Limitation of Actions Act.
- 2 Whether the application to amend the defence is res judicata and an abuse of the court process due to lateness in the proceedings.
Ratio Decidendi
The court found that the application to amend the defence to include a plea of limitation was brought too late in the proceedings without sufficient justification. The issue of limitation had already been raised and addressed in a prior ruling by Kubo J., who held that it was a matter for evidence at trial. The court considered the repeated attempts to amend the defence as an abuse of the process of court, especially given the age of the case and the lack of explanation for the delay. The court upheld the plaintiff's preliminary objection, finding the application to be res judicata and an abuse of process, and dismissed the application with costs to the plaintiff.
Court Disposition
application dismissed; preliminary objection upheld
Orders
- The application to amend the defence is dismissed with costs to the plaintiff.
- The preliminary objection is upheld.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 2207 of 1998
CHRISTOPHER KAGEMA GICHUHI…………………1st PLAINTIFF
VERSUS
BENSON IRUNGI MBARIA…………………………….1ST DEFENDANT
ROSEMARY WANJIKU MBARIA…………………..2ND DEFENDANT
RULING
This is a very old case.The record is evidence of protracted litigation and I must wonder why it has not been determined from the time it was filed.There is now before me an application by way of Chamber Summons under Order VI A rules 3,5,7 and 8 of the Civil Procedure Rules and Sections 3A and 100 of the Civil Procedure Act for orders that the 1st and 2nd defendants be granted leave to amend and file their further amended defence in terms of the annexed draft and that the said draft be deemed as duly served.
The grounds set out are that the plaintiff’s suit is statute barred under the Governments Lands Act Cap 280 Laws of Kenya and that the omission to include the defence of the statutory limitation under the Government Lands Act was inadvertent.
It is also the defendants’ case that the suit is statute barred under the Limitation of Actions Act Cap 22 Laws of Kenya and no leave to extend the time of Limitation was sought by the plaintiff.The defendants have pleaded prescription as a defence which is the legal consequence of Limitation of Action but have not pleaded specifically limitation of action as a defence.
It is also their case that the amendment will facilitate the determination of the real issues in dispute and that the plaintiff will not suffer any prejudice if the application is allowed. The application is opposed and a replying affidavit as been sworn by the plaintiff to that effect.
There is now a Notice of Preliminary Objection filed by the plaintiff’s advocate to the effect that the application is res judicata and that it is an abuse of the process of the court and is brought in bad faith.
Both counsel have filed submissions which I have on record.This is not the first time the issue of limitation has come up because there is on record a ruling by Kubo J. which mentioned the said issue.
I have noted that this case is very old.There is no doubt that its continued presence in our shelves is overbearing not only on the plaintiff but I believe also on the defendants.In the ruling made by Kubo J. the learned judge said “it appears the case for the defence is being prepared in staggered installments. This won’t do.” It has not been shown on the part of the defendants why this amendment is being sought this late in the proceedings.Observe that the issue of Limitation has been alluded to.This can properly be canvassed when evidence is called by the parties hereto.I consider it an abuse of the process of court for the application to be brought this late in view of what is being advanced.
Kubo J. in his ruling aforesaid mentioned also that the issue of limitation is an issue for evidence at the trial of the suit.I have no doubt that the learned judge had the issues alive in his mind and did not want to go beyond such observations.I hold the same view and proceed to uphold the Preliminary Objection and dismiss the application with costs to the plaintiff.Orders accordingly.
Dated, signed and delivered atNairobithis 1st day of October, 2010.
A.MBOGHOLI MSAGHA
JUDGE