[2022] KEHC 10658 (KLR)

Jubilee Insurance Co. Ltd v Matfam Limited (Civil Suit 14 of 2017) [2022] KEHC 10658 (KLR) (15 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10658 (KLR)

Republic of Kenya

In the High Court at Narok

Civil Suit 14 of 2017

F Gikonyo, J

June 15, 2022

Between

Jubilee Insurance Co. Ltd

Plaintiff

and

Matfam Limited

Respondent

Ruling

1. Before me is the defendant’s Notice of Motion dated 14th February 2022, Seeking the following orders;i.Spent.ii.That the honourable court do grant the defendant leave to file amended defence to include counter claim against the plaintiff and add the plaintiff in Narok CMCC No. 41 of 2014 as an interested party.iii.That the costs of this application be in cause.

2. The application is based on 8 grounds set out on the face of the application and the supporting affidavit sworn by Elijah Matibo on 14/02/2022.

3. The plaintiff/respondent opposed the application and filed the replying affidavit dated 28th February 2022 by Beatrice Muriithi.

4. The 1st interested party opposed the application vide the grounds of opposition dated 25/02/2022 and the replying affidavit sworn by Jared Nyambati Moranga on20/03/2022.

5. The motion was disposed of by way of written submissions.

Defendant/Applicant’s Written Submission 6. The defendant/applicant submitted that the plaintiff/respondent have not demonstrated to the court their willingness to prosecute their application dated 19th December 2017 that remained dormant for a period of over 4 years and there is no indication when they will do so. The defendant applicant on the other hand is facing eminent danger of execution. The defendant /applicant prays that the application be allowed to enable the applicant make application for stay of execution by the intended interested party.

7. The defendant/applicant submitted that this application should have been brought under Order 8 Rule 3(1) C.P.R. but such mischief is permissible under Order 51 Rule 10 (1) and (2) C.P.R. The defendant/applicant submitted that the substance of the application is clear and seeks leave to file amended defence to include a counter claim and add the interested party as a party to this suit to protect their interest.

8. The defendant/applicant submitted that the ingredients of res judicata as provided under Section 7 C.P.A. are missing in the present application. That there is no previous suit instituted between the defendant/ applicant and the intended interested party seeking stay of execution of judgment in Narok CMCC No. 41 of 2014 pending hearing and determination of this suit (Narok HCCC 14 of 2017) and declaratory decree against the defendant to settle third party claims herein.

9. The defendant/applicant submitted that in the interest of justice the interested party should not be locked out in these proceedings when deciding the execution of the said judgment in Narok CMCC No. 41 of 2014 as this would violate the interested parties non-derogable rights under Article 22(3) (d), 50(1), and 25 (c) of the Constitution.

10. The defendant/applicant submitted that this court has unfettered discretion to add the intended third party as his presence in the counterclaim is necessary.

11. The defendant/applicant submitted that pre-trial directions under Order 11 C.P.R. has not been taken and therefore this application to amend and include a counterclaim is timely.

12. The defendant/applicant submitted that the intended amendment is consistent with pleadings and will not alter the nature of the plaint or introduce any new issues.

13. The defendant/applicant submitted that he has a right to institute a separate suit against the plaintiff and third party. However, to avoid multiplicity of suits, the applicant should be allowed to introduce a counter claim so that all issues may be effectively determined in one suit.

14. The defendant/applicant relied on the following authorities;i.Order 1 Rule 20(2), Order8 Rule 3(1) And 5, Order 11, Order 51 Rule 10(1) And (2) of theCivil Procedure Rules.ii.Section 7 Civil Procedure Actiii.Article 22(3) (d), 50(1), 25(c) and 48 of the Constitution of Kenya 2010. iv.St. Patrick Hills School Ltd Vs Bank of Africa (K) Ltd [2018] eKLR.

Intended interested parties/ respondents’ submissions. 15. The intended interested parties/ respondents submitted the instant application offends Section 7 of the C.P.A. That the issues raised in the application had already been initially heard and conclusively determined by this court. The ruling of this court delivered on 24. 08. 2018 has never been subjected to any review or appellate proceedings therefore, remains unchallenged and final.

16. The intended interested parties/ respondents submitted that the 1st intended interested party/respondent should not be enjoined in these proceedings. The 1st intended interested party has no stake in the ‘fight’ between the plaintiff and the defendant. The 1st interested party herein was not privy to the insurance contract between the plaintiff and the defendant.

17. The intended interested parties/ respondents submitted that Narok CMCC No. 41 of 2014 has never been stayed and there is no evidence put forth by both parties to show that the same was stayed. That the said Narok CMCC No. 41 of 2014 was heard to its logical conclusion and judgment was rendered in both Narok CMCC No. 41 of 2014 and Narok HCCA No. 15 of 2020.

18. The intended interested parties/ respondents have relied on the following authorities;i.Section 3A, and 7 of the CPA.ii.William Koross V Heziah Kiptoo Komen & 4 Others[2015] eKLR.iii.Indian Supreme Court Case of Lal Chand V Radha Kishan, AIR 1977 SC 789iv.Independent Electoral & Boundaries Commission V Maina Kiai & 5 Otthers [2017] eKLR.v.Uhuru Highway Development Ltd V Central Bank of Kenya [199] eKLR.vi.Jubilee Insurance Company Ltd v Matfam Limited [2018] eKLRvii.Savings & Loan (K) Limited Vs Kanyenje Karangaita Gakombe & Ano.

Plaintiff/Respondents Submissions 19. The plaintiff/respondent submitted that the defendant’s application dated 14/02/ 2022 seeking to amend its statement of defence is a ploy that seeks to only delay the proceedings further and amounts to an abuse of the court process and the same should be dismissed with costs to the plaintiff.

20. The plaintiff/respondent submitted that the defendant applicant has brought the application after a period of undue delay and no reason has been provided for the inordinate delay in seeking amendment of the pleadings.

21. The plaintiff/respondent submitted that it is not opposed to the plaintiff in Narok CMCC No. 41 of 2014 being enjoined as an interested party as the outcome of the instant suit has a direct impact on them.

22. The plaintiff/respondent submitted that prayed that its application dated 19th December 2017 be heard and dispensed with as a matter of priority to enable parties address the real issues raised in this instant suit.

23. The plaintiff/respondent relied on the following authorities;i.Section 100 of the CPAii.Kassam V Bank of Baroda [2002 eKLRiii.Moraho Limited V Sinohydro Corporation Ltd [2014 eKLR.

Analysis and determination 24. I have considered the application, the replying affidavit, grounds of opposition the cited authorities, written submissions made and the relevant provisions of the Law. I consider the following to be the issues for determination by the court: -i.Whether the defendant ought to be granted leave to file amended defence to include counter claim against the plaintiff as sought.ii.Whether the application to add the plaintiff in Narok CMCC No. 41 of 2014 as an interested party is res judicata.

Leave amend defence 25. Order Order 8 Rule 3 of the Civil Procedure Rules, 2010 provides inter alia:-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 sub - rule (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 sub - rule if it thinks just so to do.3)An amendment to correct the name of a party may be allowed under sub - rule (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 sub - rule (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.

26. Order 8 Rule 5 gives the court a very wide discretion as far as amendment of pleadings is concerned. The Rule states: -For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and, on such terms, as to costs or otherwise as are just.

27. The defendant is seeking leave to amend its defence to include a counter claim against the plaintiff on the ground that the plaintiff is obligated to indemnify the plaintiff and bear all liabilities arising from the accident herein, and in particular claim no. Narok CMCC No. 41 of 2014. They claim that the insurance should be compelled to settle the claim and all interest and liabilities therefrom in accordance with the law.

28. I have perused the draft amended defence and counter claim marked “EXH EMM3”, and I do note that what the defendant is seeking to amend is the address of the defendant’s advocate and a counter claim against the plaintiff and to add the interested party to these proceedings.

29. It is trite law that an amendment should be allowed freely at any stage of the proceedings as long as the amendment does not cause prejudice or injustice to the opposing side which cannot be remedied by costs. The factors to be taken into account in the exercise of the court’s discretion were summarized in “Kassam – Versus - Bank of Baroda (Kenya) Limited (2002) 1 KLR 294. They are: -a)The party applying is not acting mala fides;b)The amendment will not cause some injury to the other side which cannot be compensated by costs;c)The amendment is not a device to abuse the court process;d)The amendment is necessary for the purpose of determining the real questions in controversy between the parties and avoid multiplicity of suits;e)And that the amendment will not alter the character of the suit.

30. Notably, this application has been made about three (3) years and four (4) months after the defence was filed. That notwithstanding, as indicated above, an amendment can be sought any time before the suit is concluded. Of great value here is that the counter claim seeks a declaration that the insurer herein should settle the judgments obtained by third parties who were injured out of the use on the road of a motor vehicle insured by the plaintiff. It seeks to enforce a statutory obligation on insurer under section 10 of the Insurance (Motor Vehicles Third Party Risks). Its success or otherwise will be determined upon evidence.

31. The proposed counter claim and these proceedings are the different sides of the same coin; thus, perfectly consistent with the cardinal purpose of amendment of pleadings; to determine completely issues in controversy between the parties. In addition, the counterclaim will be conveniently disposed of in these proceedings.

32. See Order 7 Rule 3 of the Civil Procedure Rules which states;“3. A Defendant in a suit may set-off, or set-up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and whether it is for a liquidated or unliquidated amount, and such set-off or counterclaim shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit, both on the original and on the cross-claim; but the Court may on the application of the plaintiff before trial, if in the opinion of the court such set-off or counterclaim cannot be conveniently disposed of in the pending suit, or ought not to be allowed, refuse permission to defendant to avail himself thereof.”

33. In my view there is no mala fides on part of the defendant.

34. I allow the amendment to include a counter claim in the nature of a declaratory suit under section 10 of the Insurance (Motor Vehicles Third Party Risks).

Claim of res judicata. 36. The claim of res judicata under Section 7 of the Civil Procedure Act was raised in respect of joinder of interested parties in these proceedings.

37. I do note that an application dated 29th January, 2018 by the 1st and 2nd interested parties to be joined as parties in this suit was determined by the court (Bwonwonga J) in a ruling delivered on 24/5/2018.

38. Therefore, as long as the said decision on the question of joinder of the proposed interested parties has not been reversed or reviewed, the issue cannot be re-litigated through an application for amendment of the defence.

39. Accordingly, I decline the request to join interested parties.

Conclusion and Orders. 40. Ultimately: -i.Thatthe defendant is hereby granted leave and directed to file and serve the Amended statement of defence to include the counter claim against the plaintiff within the next fourteen (14) days from the date of this ruling.ii.Thatthe Plaintiff shall file and serve reply and defence to counterclaim as stipulated in the Civil Procedure Rules.iii.Thatthe application to add the interested parties in the proceedings is disallowed.iv.Thatgiven the outcome of the application, each party shall bear its own costs. 41. It is so ordered

DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 15TH DAY OF JUNE, 2022F. GIKONYO M.JUDGEIn the Presence of :1. Musembi Ndolo for applicant2. Mr. Kasaso- CA3. Nyamweya for plaintiff