[2010] KEHC 3255 (KLR)
The court found that the amendments sought by the defendant/applicant were made in good faith, did not introduce a new cause of action or ground of defence, and were not prejudicial to the plaintiff/respondent as any prejudice could be compensated by costs. The amendments flowed from the original pleadings and did...
Source-derived case information.
- Citation
- [2010] KEHC 3255 (KLR)
- Parties
- Defendant: Edward G. Kihia; Plaintiff: Thomas Caroll
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 217 of 2004
- Procedural Posture
- Civil Case / Ruling on Application to Amend Defence and Counterclaim
- Outcome
- Application for leave to amend defence and counterclaim allowed.
- Judges
- SP Ouko
- Legal Topics
- Amendment of Pleadings, Discretion of Court, Delay in Application, Counterclaim Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward G. Kihia
Defendant
Thomas Caroll
Plaintiff
Procedural Posture
Civil Case / Ruling on Application to Amend Defence and Counterclaim
Legal Issues
- 1 Whether the defendant/applicant should be granted leave to amend the defence and counterclaim.
- 2 Whether the proposed amendments are prejudicial to the plaintiff/respondent or introduce a new cause of action.
- 3 Whether the delay in bringing the application for amendment is excusable.
Ratio Decidendi
The court found that the amendments sought by the defendant/applicant were made in good faith, did not introduce a new cause of action or ground of defence, and were not prejudicial to the plaintiff/respondent as any prejudice could be compensated by costs. The amendments flowed from the original pleadings and did not change the character of the suit. Although there was delay in bringing the application, the delay was excusable due to changes in advocates and judicial officers, and the plaintiff/respondent would not suffer irreparable prejudice. Therefore, the court exercised its discretion to allow the amendments, subject to payment of filing fees and costs to the plaintiff/respondent.
Court Disposition
Application for leave to amend defence and counterclaim allowed.
Orders
- The draft Amended Statement of Defence and Counter Claim is deemed as having been duly filed and served, subject to payment of filing fees.
- Costs to the plaintiff/respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Civil Case 217 of 2004
EDWARD G. KIHIA…...….............…….DEFENDANT/APPLICANT
VERSUS
THOMAS CAROLL…….............……...PLAINTIFF/RESPONDENT
RULING
On 21st June, 2007, the plaintiff/respondent closed his case having called three witnesses. The hearing of the defendant/applicant’s case has not commenced from what I can glean from the record, following the transfer of the trail judge, Hon. Mr. Justice D. Musinga and also due to the present application. The defendant/applicant is praying for leave to amend the defence and the counterclaim.
The amendment is sought on the grounds that the defendant/applicant has engaged a new advocate who has advised him that the statement of defence and counterclaim filed by his erstwhile advocate does not disclose any specific prayer; that the amendment sought will not prejudice the plaintiff/respondent.
In his grounds of opposition, the plaintiff/respondent has deposed that the application has been brought after inordinate delay; that the defendant/applicant by raising the issue of the Law Society of Kenya terms and conditions, is introducing a new cause of action; that the application is prejudicial to the plaintiff/respondent, the parties having done discovery, exchanged documents and filed agreed issues.
On the basis of Section 100 of the Civil Procedure Act and Order 6A rule 3 of the Civil Procedure Rules as well as numerous decisions of the Court of Appeal and this court, it is common ground that the power to amend pleadings is discretionary, exercised with the sole aim of determining the real question or issue in controversy before the court.
It is therefore trite learning that application for amendment of pleadings must be made timeously and in any case at any stage of the proceedings (including appeal stage). 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. The amendment sought should be material and not merely technical. It is also common ground that if the proposed amendment introduces a new case or a new ground of defence it can nonetheless be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action.
Again an amendment which would have the effect of depriving the other party of his right to rely on limitation will not be allowed. See Joseph Ochieng’ and 2 Others Vs. First National Bank of Chicago, Civil Appeal No.149 of 1991. Indeed Order Vl rule 13 of the Civil Procedure Rules gives the court the discretion first to order an amendment or strike out pleadings which do not disclose reasonable cause of action or defence. See also Motocor Vs. Auto Garage Limited and Another (1971) EA 353.
The defendant/applicant in the instant matter has averred that he has been prompted to bring this application because the original statement of defence and counter claim make no specific prayer. The substantive amendments sought in this matter relate to:
i)paragraph 4(h) where the only addition is the figure of Kshs.129,833. 00 which the defendant/applicant has alleged the Nakuru Municipal Council had agreed to waive
ii)paragraph 4(1) is a line that the transaction was not consistent with the Law Society terms and conditions of sale
iii)the five prayers which were not in the original counter-claim.
All these proposed amendments are made in good faith and are in no way prejudicial to the plaintiff/respondent as he can be compensated by an award of cost. The defendant/applicant will be available for cross-examination or the plaintiff/respondent recalled. But more fundamentally, the proposed amendments do not seek to introduce a new case or ground of defence. They indeed flow from the original pleadings. The counter-claim as originally framed, sought no specific relief. All the amendments sought cannot form the basis of a separate suit and clearly belong to this suit.
No doubts there has been some delay, the suit having been filed on 22nd July, 2004 and the statement of defence and counterclaim filed on 29th July, 2004. In between, parties have changed advocates and the hearing itself did not start until late (October) 2005 and was further delayed for two years (September, 2007). One year, (2008) later the trial judge was transferred. In the light of these events, the delay, although inordinate, are excusable and the plaintiff/respondent will not be prejudiced by the lateness. In the result, the proposed amendments are allowed.
Subject to filing fees being paid, the draft Amended Statement of Defence and Counter Claim is deemed as having been duly filed and served. Costs to the plaintiff/respondent.
Dated, Signed and Delivered at Nakuru this 5th day of February, 2010.
W. OUKO
JUDGE