[2022] KEHC 13028 (KLR)

Dogra v Attorney General (Civil Suit 291 of 2014) [2022] KEHC 13028 (KLR) (Commercial and Tax) (16 September 2022) (Ruling)

Neutral citation: [2022] KEHC 13028 (KLR)

Republic of Kenya

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

Commercial and Tax

Civil Suit 291 of 2014

A Mabeya, J

September 16, 2022

Between

Bhupinder Singh Dogra

Plaintiff

and

The Attorney General

Defendant

Ruling

1. The plaintiff moved this court vide an application dated February 16, 2021. It was brought under Order 8 Rule 3 of the Civil Procedure Rules, 2010, Article 159(2) of the Constitution, and Sections 1A and 1B of the Civil Procedure Act.

2. He sought leave to amend his plaint dated July 2, 2014. The application was supported by his affidavit sworn on February 16, 2014. It was deponed that the purpose of the amendment was to expunge prayers e) and f) of the plaint following a ruling dated October 17, 2016 which dismissed those prayers after the defendant filed a Preliminary Objection dated December 29, 2014.

3. The defendant filed a preliminary objection dated May 18, 2021. It was based on grounds that the application advanced a matter that was res judicata. That the claim sought to be amended was statute barred and that this court lacked jurisdiction to entertain the claim.

4. The plaintiff’s submissions were dated September 17, 2021while those of the defendant were dated July 5, 2021. The Court has considered them as well as the affidavits on record.

5. The Court will first address the preliminary objection raised by the defendant. It was submitted that the application sought to amend matters that had previously being determined by this Court and the court of appeal vide rulings dated October 17, 2016 and April 5, 2019, respectfully. That the application was therefore res judicata and offended section 7 of the Civil Procedure Act.

6. This court has seen the ruling dated October 17, 2016 which was upheld by the Court of Appeal. The court held that;“In the circumstances, the court finds and holds that save for the sum of Ksh.3,018,774. 27 the claim as set out in the plaint is statute barred and to that extent the preliminary objection succeeds. Chamber summons as a consequence stands dismissed with costs. As stated above the plaint is susceptible to amendment, to that extent it is not dismissed.

7. This court has also seen the intended amended plaint. It deletes prayer e) of the plaint and substitutes it with a clause e (i) which addresses the claim for Kshs. 3,018,777. 27. There is nothing to show that this claim is res judicata. In the aforesaid ruling, the Court expressly found that the claim for Kshs. 3,018,777. 27 had not been dismissed and opened the door for an amendment of the plaint to reflect that claim. The plaintiff has now sought for such amendment in line with that ruling.

8. This cannot be said to be res judicata. The defendant also submitted that the claim sought to be amended was statute barred. That argument had already been made before this court leading to the ruling of October 17, 2016. The same cannot be re-litigated again at this point.

9. On whether the application meets the threshold for amendment of pleadings, the Court cites the case of St. Patrick’s Hill School Limited v Bank of Africa Kenya Limited [2018] eKLR wherein the court held: -“The law as regards the grant of leave to amend are well settled. The general rule on this subject is that amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other party can be compensated by costs. (See Eastern Bakery v Castelino (1958) EA 461). The main principle is that an amendment should not be allowed if it causes injustice to the other side (see “Chitaley, P.BB”).”

10. The plaintiff submitted that the amendment ought to be allowed so that the issue of payment can be determined on merit. That the application was brought before the matter was heard and was brought in good faith. That the delay to bring the application was caused by the sudden disappearance of the file after the ruling was delivered in October, 2017 and produced several letters written to court.

11. On the other hand, the defendant submitted that there was inordinate delay in bringing the application.

12. This application was brought before the matter was set down for hearing. This court however takes notice of the fact that though the option for amendment was offered in the ruling delivered on October 17, 2016, the plaintiff only made the application 4 years later, after showing cause why the suit should not be dismissed. Undoubtedly, this causes prejudice to the defendant. However, I find that such prejudice can be compensated by way of costs.

13. Accordingly, the application is allowed on the following terms: -a.The amended plaint be filed and served within 7 days of this ruling.b.The defendant to file his amended defence, if need be, within 14 days of this order.c.Costs in the cause.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF SEPTEMBER, 2022. A. MABEYA, FCIArbJUDGE