[2022] KEHC 11433 (KLR)

Kenya Power And Lighting Company Limited v G.Tibi & 6 others (Civil Case 104 of 2013) [2022] KEHC 11433 (KLR) (Civ) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11433 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 104 of 2013

WA Okwany, J

May 19, 2022

Between

Kenya Power And Lighting Company Limited

Applicant

and

Moses G.Tibi

1st Respondent

John Muhia Kanotha

2nd Respondent

Monicah Machuma

3rd Respondent

Peter Oraro

4th Respondent

Charles Gathogo

5th Respondent

Job W. Kaguongo

6th Respondent

Wilfred Rachiel

7th Respondent

Ruling

1. This ruling is in respect to the defendant’s application for leave to amend the defence. The application is supported by the affidavit of Justus Ododa and is based on the following grounds:-1. That the defendant has discovered facts giving rise to a claim against some of the plaintiffs herein in respect to the claim they have filed for determination before this honorable court.2. Thathe said information was not available as we were instructing the counsel on record and as it only resurfaced recently.3. Thatthe defendant craves leave of this honourable court to amend its statement of defence to now include a counter-claim to its.4. Thatthe present application has been filed on bona fide grounds and no prejudice will be caused to the plaintiffs’ rights if the application is allowed.

2. The respondents opposed the application through the replying affidavit of the 2nd plaintiff Mr. John Muhia Kanotha who states that defendant should not be allowed to bring the application after 8 years for it had ample time to file the application. He further states that the amended defence and counterclaim do not raise any triable issues and contain mere denial. He avers that defendant should file a new suit with regard to its claim against the two plaintiffs, as the other five plaintiffs are not parties to the defendants counterclaim.

3. I have carefully considered the application, the replying affidavit and the rival arguments made by the opposing parties. The main issue for determination is whether the defendant has made out a case for granting of the orders for amendment.

4. Order 8 rule 3 of the Civil Procedure Rules, 2010 states:-(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 sub-rule (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 he 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.

5. The defendant seeks leave to amend its statement of defence to include a counterclaim against some of the plaintiffs. The defendant contends that the information was not available as it was filing the defence as it only recently resurfaced.

6. In Ochieng and others vs First National Bank of ChicagoCivil Appeal Number 147 of 1 (unreported) as cited with approval in St. Patrick’s Hill School Ltd vs Bank of Africa Kenya Ltd [2018] eKLR the Court of Appeal set out the circumstances under which courts may grant leave to amend the pleadings as follows:-a.the power of the court to allow amendments is intended to determine the true substantive merits of the case.b.the amendments should be timeously applied for.c.power to amend can be exercised by the court at any stage of the proceedings.d.that 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.e.the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on limitations Act subject however to powers of the court to still allow an amendment notwithstanding the expiry of current period of limitation.

7. Further in the case of Joseph Ochieng & 2 Others vs First National Bank of Chicago Civil Appeal No 149 of 1991 the Court of Appeal while citing with approval Bullen, Leake & Jacobs in Precedents of Pleadings, 12th Edition remarked regarding amendment of pleadings as follows:-“The power to so amend can be exercised by the court at any stage of the proceedings ( including appeal stage); that 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…that if the proposed amendment introduces a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially different character which would more conveniently be made the subject of a fresh action..”

8. In applying the principles laid down above to the circumstances of this case, the plaintiffs instituted the suit on March 19, 2013 and the defendant filed its statement of defence on May 6, 2013. I note that the matter had been referred for mediation which was unsuccessful and referred back to the court on May 11, 2021. The hearing has not commenced and for bringing finality to a suit and avoid multiplicity of suits I find that the defendant has made out a case for granting of the orders sought.

9. I therefore make the following orders: -1. The amended defence and counterclaim annexed be deemed as duly filed upon payment of the requisite fees.2. The plaintiffs shall file the defence within 7 days from the date of the ruling.3. The costs of the application to the plaintiffs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF MAY 2022. W. A. OKWANYJUDGEIn the presence of:-Mr. Mwenda for Plaintiffs/Respondents.No appearance for Defendant/Applicant.Court Assistant- Sylvia