[2017] KEHC 929 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CIVIL APPEAL NO. 195 OF 2016

JACOB NGIGI MUIRURI...........................................APPELLANT

VERSUS

MBOTE STORES LIMITED...................................RESPONDENT

JUDGMENT

1. The Appellant herein, Jacob Ngigi Muiruri, approached the Thika Chief Magistrate’s Court vide a Plaint dated 28/11/2006. In it, the Appellant sued “Mbote Stores Ltd” in a suit sounding in the tort of negligence.

2. The gravamen of the claim by the Appellant is contained in paragraph 3 of the short Plaint. That paragraph reads as follows:

On or about the 23rdof April, 2006, while in the course of his employment with the Defendant, the Plaintiff in the company of other workers were returning to the defendant’s beer depot, when they were attacked by thugs who beat them up resulting to serious injuries to the Plaintiff (sic).

3. The Plaint prayed for special damages, loss of earning for at least one year, general damages and costs of the suit.

4. The named Defendant in the suit, Mbote Stores Ltd, responded by failing a Statement of Defence dated 15/02/2007 and filed in Court on the same day. Apart from denying the incident happened, and in the alternative that there was no breach of the duty of care owed to the Appellant, the Respondent included, at paragraph 9 of its Statement of Defence, the following:

Also without prejudice to the foregoing, the Defendant states that the suit herein has been brought against the wrong party and a preliminary objection will be raised during the hearing for the suit to be struck out with costs.

5. The Appellant’s Reply to Defence, in essence, joined issues with the entirety of the Defence.

6. The Plaint was filed on 24/12/2006. The Memorandum of Appearance by the Respondent’s advocates and the Statement of Defence were filed on 15/02/2007. The Reply to Defence was filed on 08/03/2007.

7. With the pleadings thus closed, the Appellant’s lawyers moved to set the suit for hearing. They secured 05/11/2007 as the date for the hearing of the suit. Unfortunately, the Defendant’s advocates were not ready on that appointed date and they sought an adjournment. The adjournment was granted and the matter was stood over generally.

8. Again, the Appellant’s lawyers obtained a new hearing date: 16/06/2008. Again, the Defence requested for an adjournment even though the Appellant was ready to start their case. The adjournment was, again, granted and the matter was stood over generally.

9. The Appellant’s lawyers, again, secured a third hearing date – this time on 07/07/2009. On this date, it was the Appellant’s lawyers’ turn to seek an adjournment: They informed the Court that they had realized that they need to do a search and therefore they were not ready to proceed. The adjournment was granted and the matter was stood over generally.

10. It took slightly less than a year for the next action on the file.

The Appellant’s lawyers now filed an Application dated 13/05/2010 to be granted leave to amend the Plaint. It is the ruling emanating from the Court’s resolution of that Application that is on appeal before me.

11. In the lower Court, after the Application seeking leave to amend the Plaint was heard amidst stiff opposition from the Respondent, the Learned Trial Magistrate returned a verdict refusing leave to the Appellant. The Appellant is dissatisfied with the ruling and has preferred this appeal. In it, he has raised six grounds as follows:

I. THAT the learned trial magistrate erred in law and fact in holding that it is alright for a claimant who has a good claim to lose such a claim on account of an advocate’s mistake.

II. THAT the learned trial magistrate erred in law and fact in coming to a conclusion that went straight against the spirit of the provisions of order6 A of the Civil Procedure rules in Chapter21 Laws of Kenya and the spirit of precedents and decided cases of similar nature.

III. THAT the learned trial magistrate erred in law and fact in finding that a new party was being introduced to the suit while the evidence before her and submissions made by counsel was pointing to the opposite direction.

IV. THAT the learned trial magistrate erred in law and fact by proceeding on wrong principles as to what constitutes inordinate delay and when equity can come to the aide of a party.

V. THAT the learned trial magistrate erred in law and fact in failing to appreciate that any prejudice that might have been caused to the defendant by the application for amendment could reasonably be compensated by way of costs.

VI. Any other ground that may become apparent upon receiving the proceedings and ruling of the lower court.

12. Before me, the Appeal was argued by way of Written Submissions. The parties indicated that they had no need to orally highlight their submissions.

13. Counsel for the Appellant submitted that the Appellant had filed an application dated 13/5/2010 seeking to amend the plaint and describe the defendant properly as MBOTE BEER DISTRIBUTORS LTD instead of MBOTE STORES LIMITED.

14. Counsel submitted that the mistake was his (Advocate’s) and that it was inadvertent and further that the Court should not visit the error on his client who is innocent.

15. Counsel made reference to Order 6 A rule 3 (2) and Order 8 rule 3 sub-rule 3 of the Civil Procedure Rules.

16. According to the Appellant “Mbote Stores Limited” and “Mbote Beer Distributors Limited” are owned by the same individuals and operate from the same premises. According to him, therefore, Mbote Beer Distributors Limited is not a new party. Hence, counsel believes that the Learned Trial Magistrate was wrong in finding that the introduction of Mbote Beer Distributors Ltd. was time barred.

17. Further, counsel for the Appellant submitted that the Learned Magistrate was wrong in holding that the substitution would have been time barred because she failed to appreciate that between January 2007 and December 2008 there was an issue whether employment related claims could be filed in the Magistrates’ Courts. Counsel says that a law had been enacted removing all these claims to the Employment and Labour Relations Court and the Law Society of Kenya had filed a suit leading to a stay being issued with respect to all such matters.

18. Counsel for the Appellant further submitted, that a mistake done by an advocate, should not be visited on a plaintiff who had a good claim. Reliance was placed on the Court of Appeal inCivil Appeal No. 257 of 1995 and of the High Court in 935 of 1999.

19. Counsel submitted that when the other party can be compensated by way of costs then the court generally should allow the application to amend pleadings as opposed to rejecting the same. Reliance was placed on the case of Wamuiga vCentral Bank of Kenya 2002 ( E. A. L. R) page 319.

20. The Respondent opposed the Appeal and argued that the effect of the Application before the Learned Magistrate was that the Appellant was bringing in a new party yet the Statute of Limitations had already come into effect. The Respondent contended that the Appellant should have sought leave to amend the plaint out of time instead.

21. It was further submitted that the allegation that the plaintiff’s advocate made a mistake while describing the defendant is inadequate and doubtful as there is no affidavit from the plaintiff to support that claim. In this regard, the Respondent placed reliance on the case of WEC Lines Nederlands BV v Otrabu DesTransport Des Marchadises KLR (1991)page 228 to 229.

22. Lastly, the respondent submitted that the Application to amend was filed 3 years after close of pleadings. The Respondent argued that the claim by the Appellant that there was 2 years stay at the industrial court is not supported with any documents.

23. The enabling provisions of the law in regard to amendments is Order 8 rule 3(or Order VIA Rule 3 of the Old Civil Procedure Rules) of the Civil Procedure Rules which provides as follows:

3. [Order8, rule 3. ] Amendment of pleading with leave.

(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 subrule (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 subrule if itthinks just so to do.

(3) An amendment to correct the name of a party may be allowed under subrule (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 subrule (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 subrule (2) notwithstanding that its effect will be 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.

24. The general rule applicable is that started by Sir Kenneth O’Connor in Eastern Bakery v Castellino [1958] EA 461at462:

…Amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side, and that there is no injustice if the other side can be compensated by costs.

25. The rationale for this liberal attitude towards amendments was given in Patel v Joshi [1952] 19 EACA 42 at p. 49:

Amendments are allowed as a concession to human liability or error, not to enable a litigant to play fast and loose with his opponent and the court.

26. We therefore start from the position that amendments, whether to plaints or defences or other pleadings, are freely permitted unless some factor exists to disentitle a party from the proposed amendment. Over the years, the courts have suggested factors which would disentitled a party from the sought amendment. These include:

(a) A party cannot, though an amendment, substitute one distinct cause of action for another;

(b) A party cannot change the subject matter of the suit or substantially change the character of the suit;

(c) A party will also not be permitted to amend where such an amendment will prejudice the rights of the other party existing at the time of the proposed amendment. For example, a party will not be permitted to amend its pleadings if the effect would be to deny the opposite side a defence of limitation which might already have accrued.

(d) A party will not be permitted to amend where such an amendment is sought in bad faith or where it is a device to abuse the process of the court.

27. These principles are derived from a number of our cases including Eastern Bakery Case (supra); Central Kenya Ltd v. Trust Bank Ltd & Others(Civil Appeal No. NAI 222 of1998); Ladopharma Co. Ltd & Others v National Bank of Kenya Ltd(Milimani HCCC No. 1031 of 2001);George Gikubu Mbuthia v Consolidated Bank of Kenya & another [2015] eKLRandKassam v Bank of Baroda (Kenya Ltd[2002] 1KLR 294among others. The singular principle to be distilled from these cases and principles is that an amendment will be allowed if it does not cause injustice to the other side. Conversely, it will not be permitted if it will cause injustice to the other side.

28. Applying these principles to the current case, it is readily obvious that the first amendment sought by the Appellants to wit, to substitute the party which is sued cannot be permitted. There are at least three reasons for a Court to decline to exercise its discretion to permit the Appellant to amend its Plaint so late in the day.

29. First, the effect of the amendment is to substitute one party for another who was not originally party to the suit. This is not an automatic bar to a prayer for leave to amend a plaint. However, in instances such as this one where such an amendment would prejudice the Respondent, such an amendment should not be permitted.

30. Second, and related, the effect of the amendment will be to sue the newly introduced party to wit Mbote Beer Distributors Limited outside the Statute of Limitations. The bottom line is that Mbote Beer Distributors Limited was never sued in this matter. Mbote Beer Distributors Limited is a different entity than the entity which was sued, to wit, Mbote Stores Limited. By attempting to amend its Plaint, the effect would be sue Mbote Beer Distributors Limited more than three years after the alleged cause of action arose. This would be clearly prejudicial to the party being brought in to the suit.

31. Third, the conduct of the Appellant in this matter does not entitle it to the exercise of discretion by the Court. As outlined above, the Appellant was put on notice by the Respondent that it will raise a preliminary objection to the effect that the Appellant had sued a wrong party. That notice was in the form of Paragraph 9 of the Statement of Defence filed on 15/02/2007. Despite this notice, the Appellant and his lawyers did nothing to confirm the accuracy of their drawn suit papers. Indeed, they did not even bother to do a search for the motor vehicle that the plaintiff was allegedly using in the course of his employment by the defendant when he was allegedly attacked until 2009. This was two years after the issue had been raised in the Respondent’s defence and after the matter had been set down for hearing at least three times. How does one explain or excuse this utter lack of diligence on the part of the Appellant and his advocates? It is surely not enough for the Appellant’s advocates to claim that the mistake is his and not the Appellant’s and that therefore it should not be visited on the Appellant. If the Appellant’s advocates truly believe that to be the case, perhaps they will compensate the Appellant for this profound inattention they exhibited in their conduct of this matter.

32. There is one other aspect of the Appellant’s conduct that is disturbing and which disentitles it to the relief it sought. The pleadings in this case were closed in the year 2007. The appellant filed the instant application in the year 2010. The explanation given for the delay is that there was stay of all proceedings at the Employment and Labour Relations Court. The plaintiff’s counsel would have acted in a prudent manner and shown to this court any evidence in regard to the filing of the instant application which filing was rejected due to the supposed stay. Mere allegations cannot suffice. It should be recalled that the Employment and Labour Relations Court was not established until 2012 and therefore the explanation given by the Appellant’s counsel seems off. Perhaps the Learned Counsel was speaking of the decision in Malindi Law Society v Attorney General & 4 others [2016] eKLRwhich was delivered in November, 2016! In any event, the Appellant did not sufficiently explain the delay in bringing the Application to amend.

33. However, I am of the view that applying these same principles to the second amendment sought by the Appellant yields a different result. In the second amendment, the Appellant seeks to amend paragraph 3 of the Plaint to include the details of the motor vehicle in which the Appellant was travelling when the alleged incident giving rise to the cause of action arose. To this extent, the Appellant seeks to add the following phrase: “while in motor vehicle registration number KAA 372K…”

34. In my view, this addition will only clarify the controversy between the parties and make it more possible for the Court to reach a just verdict on the issues. It is a minor amendment which neither introduces neither a new cause of action nor a new party to the suit. It does not prejudice the Respondent in any meaningful way. To this extent, therefore, it was, in my view, an error on the part of the Learned Trial Magistrate to refuse to allow this part of the sought amendment. Differently put, the prayer by the Appellant should have been severed with leave to substitute the Defendant declined but leave to amend paragraph of the Plaint permitted.

35. Consequently, the upshot is as follows:

(a) It is my holding that the Learned Trial Magistrate was correct in dismissing the Appellant’s prayer for leave to amend the Plaint to substitute the name of the Respondent;

(b) The Learned Trial Magistrate was, however, in error in disallowing leave to amend paragraph 3 of the Plaint to include details of the motor vehicle that the Appellant was allegedly travelling in when the alleged incident giving rise to the cause of action arose.

36. To this extent, therefore, the appeal herein has partly succeeded. The ruling and decision of the Learned Trial Magistrate relating to the Appellant’s Application dated 13/05/2010 is set aside. In its place an order will be entered:

(a) Affirming the part of the decision and order declining leave to amend the Plaint to substitute the Respondent with Mbote Beer Distributors Limited;

(b) Granting leave to the Appellant to amend the Plaint in paragraph 3 as per the Draft Amended Plaint attached to the Appellant’s Application dated 13/05/2010.

(c) Since the appeal has succeeded in part, each party will bear its own costs.

37. Orders accordingly.

Dated and delivered at Kiambu this 5thDay of October, 2017.

........................

JOEL NGUGI

JUDGE