[2022] KEHC 10457 (KLR)

Mahdi Logistics Ltd & another v Kitale Shuttle Limited (Civil Appeal E004 of 2020) [2022] KEHC 10457 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10457 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal E004 of 2020

TM Matheka, J

May 19, 2022

Between

Mahdi Logistics Ltd

1st Appellant

Samuel Mwau Mwanza

2nd Appellant

and

Kitale Shuttle Limited

Respondent

(Being an appeal from the ruling of Hon E Soita, Resident Magistrate, Molo delivered on September 7, 2020 in Molo CMCC No 414 of 2018)

Ruling

1. On May 16, 2018 the plaintiff/respondent’s motor vehicle registration number KCK 492 Q Toyota Matatu was involved in a road traffic accident with the defendants’/appellants’ motor vehicle registration number KCJ 313J Isuzu Lorry. It was extensively damaged.

2. On February 11, 2019, vide a Plaint dated October 8, 2018 the Plaintiff/respondent filed in Molo CM Civil Case No 414 of 2018 seeking judgment in terms of repair costs of Kshs 5000/=, loss of user of Kshs 5,000/= per day for 21 days, interests at court rates and costs of the suit.

3. In the Plaint the plaintiff averred that as a result of the said Road Traffic Accident his motor vehicle was greatly damaged.

4. Together with his Plaint he filed Witness Statement where he stated that he incurred the cost of Kshs 1,045,000 in repairs and loss of income. Among the annexed documents was an Assessment Report from Maka Automotive Works and Assessors, Loss assessors and Valuers showing that the total estimated cost of repairs would be Kshs 1,026,000/=.

5. On December 2, 2019 parties recorded consent on liability at the ratio of 80:20 in favour of the plaintiff as against the defendant and hearing on assessment of damages was set for February 10, 2020.

6. On February 10, 2021 the plaintiff gave oral testimony where he told the court that the estimates were as per the assessment report but that he had paid Kshs 1,035,000 for repairs all totaling up to Kshs 1,045,000/=.

7. However, on February 17, 2020 the plaintiff, vide an application dated February 24, 2020 sought for leave to amend its Plaint dated October 8, 2018. The gist of the amendment was to include the cost of the repairs of the motor vehicle. The application was canvassed by way of Written Submissions. The learned trial magistrate considered the application and on September 7, 2020 allowed the application and made the following orders:1)Leave is hereby granted to the Applicant/plaintiff to amend their Plaint in accordance to the Draft Amended Plaint dated March 6, 2020;2)On basis of order one, the Draft Amended Plaint dated March 6, 2020 is deemed as duly filed after payment of requisite fees and service of the amended plaint to be done upon the respondents within 7 days hereof;3)That failure of the plaintiff/applicant to serve the respondent herein within 7 days with the amended plaint dated March 6, 2020, the application dated March 6, 2020 shall be deemed dismissed;4)That the respondents are given leave to file an amended defence if need be within 14 days after service of the amended plaint dated March 6, 2020;5)That the matter herein is reopened, same is returned for pretrial conference on October 5, 20206)No orders as to costs.

8. The defendants/ appellants were aggrieved by the said Ruling and on October 5, 2020 filed this Appeal on the following six (6) grounds: -1)That the learned trial magistrate erred in law and in fact by failing to take into proper considerations the legal principles of amendment of pleadings hence erroneously granted the respondent leave to amend the plaint.2)That the learned trial magistrate erred in law and fact in allowing the respondent to amend the plaint hence prejudicing the appellant who had already closed their case and submitted on the same.3)That the learned trial magistrate erred in law in failing to consider and take into account the nature of the proceedings, the delay in bringing the application and the multiplicity of applications on the same issue that had been filed by the respondent.4)That the learned trial magistrate erred in law and in fact by fixing the case for pretrial conference thus reopening the case yet there was no specific prayer to set aside proceedings and or reopen the case for hearing.5)That the learned trial magistrate erred in law by ignoring and or misdirecting himself on the legal principles regarding setting aside of proceeding and consent judgment.6)That the learned trial magistrate erred in law and in fact by failing to take into consideration and properly analyse the applicant’s submissions.

9. The appellants seek that the Ruling/Orders of the Honorable court dated September 5, 2020 be reviewed and or set aside; The lower court case Molo CMCC 414 of 2018 be returned to the trial court for purposes of writing the final judgment and costs of this appeal be borne by the Respondent.

10. Parties agreed to dispose of the appeal by way of Written Submissions.

Defendants’/appellants’ Submissions 11. The appellants filed their Submissions on February 7, 2022.

12. On grounds one, two and three of the Memorandum of Appeal, the appellants submitted that amendment as provided for under Section 100 of the Civil Procedure Act and Order 8 Rule 3 and 5 of the Civil Procedure Rules is not absolute and is dependent on court’s discretion which should be exercised judicially.

13. They placed reliance on the case of Eastern Bakery vs Castelino (1958) EA 461 where the court held that the main principle is that an amendment should not be allowed if it causes injustice to the other side.

14. They also cited the cases John Mulwa Kangáatu vs Pan African Insurance Co Ltd [2015] eKLR & Andrew Wabuyele Biketi vs Chinese Centre for the Promotion of Investment Development & Trade In Kenya Limited & 2 Others[2015] eKLR where the courts concurred that amendment can be done at any stage before judgment as long as it is made without undue delay, not in bad faith and should not occasion prejudice or injustice to the other party which cannot be compensated by an award of costs.

15. The appellants submitted that the repair costs and towing charges were within the respondent’s knowledge and that the respondent sought to amend the same after they had poked holes and exposed shortcomings in their case. It was their contention therefore that the application for amendment was made in bad faith.

16. It was the appellants submissions that the proposed amendment would cause undue delay since witnesses would be recalled and parties have to go through the motions of trial for a second time which would result in a great deal of time and energy being wasted and the entire process being vexatious and prejudicial to the appellants. The appellant in support of this position relied on the cases of Antoniadis Evangelos vs Pema Farm Fresh Limited & 2 Others [2018] eKLR where the Court made reference to its decision in Daniel Ngetich & Another vs K-Rep Bank Limited [2013] eKLR and stated;“normally the court should be liberal in granting leave to Amend a pleading. But it must never grant leave for amendment if the court is of the opinion that the amendment would cause injustice or irreparable loss to the other side or if it is a devise to abuse the process of the court….”

17. The appellants while urging this court to interfere with the trial court’s discretion in allowing the impugned application to be guided by the holding in the case of Price & Another vs Hilder [1984]eKLR where the court referred to the leading local decision of Mbogo vs Shah [1968]EA in which De Lestang Vp (as he then was) observed at page 94 as follows:-“i think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it would not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion thereby occasioning an injustice”.

18. It was the appellants’ contention therefore that ordering a retrial through an amendment after the respondent’s case had been deconstructed by the appellant is tantamount to robbing them off their defence, it’s prejudicial and cannot be compensated by way of costs or damages.

19. They urged this court to acknowledge that this respondent’s claim is a liquidated claim and that parties had recorded a consent judgment on liability and argued that allowing an amendment after parties had already consented on liability is stealing a match against them and the same cannot be compensated by costs. They urged this court to be persuaded by the holding in Rubina Ahmed & 3 Others vs Guardian Bank Ltd (Sued In Its Capacity As A Successor In Title To First National Finance Bank Ltd) [2019] eKLR where the court while addressing amendment of pleadings stated: -“…factors of delay and prejudice were relevant for consideration and we have no reason to fault the learned judge in the manner he considered them…….”

20. The appellants also relied on the case of Mzuri Malau Mlai & 3 Others (Suing On His Own And On Behalf Of Miritini Redeemed Gospel Church) Trustees of Redeemed Gospel Church Incorporated vs Blue Horizon Properties Limited & 2 Others [2021] eKLR in which the court disallowed an application for amendment on grounds that it was filed late without any satisfactory explanation.

21. On ground four of the Memorandum of Appeal, the appellants submitted that there was no specific prayer to set aside the proceedings and or reopen the case for hearing. The appellant’s contended that parties are bound by their pleadings. To support this proposition they relied on the Law Society of Kenya vs Hillary Mutyambai Inspector General National Police Service & 4 Others; Kenya National Commission On Human Rights & 3 Others (Interested Parties)[2020]eKLR.

22. They thus urged this court to find that trial magistrate was bound by the prayers in the pleadings and that an order to reopen the case was issued in error.

23. With regard to ground 5 of the Memorandum of Appeal, the appellants reiterated that the trial court ought not to have reopened the case at the stage where parties were waiting judgment as it can only be concluded that the appellants have been injudiciously and unjustifiably tricked trapped and deceived into giving consent for a claim of over one million yet all along the consent given was for a different value of the suit.

24. It was further their Submissions that amendment reopened the consent which was binding on all parties. It had not been set aside, varied or vacated yet the amendment was allowed by the trial court thereby reopening the consent. To support this position, the appellants relied on the case of Equity Bank Limited v George Amos Wagara & Rift Valley Bottlers Limited [2021] eKLR. In my view this case does not support the appellants’ contention. Precisely in this case the appellant was dissatisfied with the trial court Ruling which allowed the amendment of the Plaint after the parties had recorded consent on liability. The appellants contended that the amended Plaint opened up settled issues and introduced new causes of action and a claim for damages for breach of contract which was not pleaded at the time of negotiation and that the consent Judgment in effect was binding to all parties. That it had not been set aside, varied or vacated yet the amendment was allowed by the trial court thereby re-opening the consent. The court in dismissing his appeal held that;“The thrust of this principle is that in judicial proceeding like in the instant case ordinary people would reasonably expect that a decision that will affect rights of a litigant be made fairly so as not deprive him or her opportunity to be heard on a key issue before final judgement. Allowing the amendments will cause no prejudice on the part of the appellant, parties will be allowed to be on equal arms so that their case can be heard on merits.”

Respondent’s Submissions 25. The respondent filed its Submissions on March 11, 2022.

26. The respondent identified the following as issues for determination:- -i.Whether the trial magistrate erred in law by allowing the amendment after the appellants had closed its case;ii.Whether the appellant are prejudiced by the said ruling;iii.Whether the trial magistrate erred in law by not setting aside the consent judgment.

27. With regard to the first issue, it was the respondent’s Submissions that Section 100 of the Civil Procedure Act and order 8 of the Civil Procedure Rules allow amendments of pleadings at any stage before judgment if such amendment is meant to enable he court decide the case on merits and administer justice.

28. The respondents made reference to the case of Ochieng & Others vs First National Bank of Chicago Civil Appeal No 147 Of 1995 which established the principles of amendments of pleadings as follows: -(a)The power of the court to allow amendment 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 of an amendment of the plaint the defendant would be deprived of his right to rely on limitation act subject however powers of the court to still allow an amendment notwithstanding the expiry of the current period limitation.

29. The respondent averred that the same position was emphasized in the case of Benjamin Shikuku Iloke vs Abdi Ali(2020) eKLR as follows:-“18. Secondly even where a party had closed its case, it ought to be allowed to reopen its case if it is for the purposes of determining the real question or issue raised in any proceedings…”

30. It was submitted for the respondent that he had a right to fair hearing as guaranteed under Article 50 of the Constitution; that he suffered loss in form of special damages and receipts were produced in court to prove the same and that the receipts amounting to a total sum of Kenya shillings one million and eighty-five thousand (Kshs 1,085,000/=) had been served upon the appellants; that the failure to include the exact figure under the prayer for special damages was the mistake of the counsel which should not be visited on the innocent client.

31. It was also submitted for the respondent submitted that the amendment sought to cure an injustice that would have been occasioned on him and that the trial magistrate’s Ruling on the same was properly guided by the law and the principles of natural justice.

32. On the second issue, the respondent submitted that the appellants will not suffer any prejudice because the amendment sought did not introduce a new cause of action which would change the nature of the case, that an order to reopen was sought and therefore appellants will have an opportunity to file an Amended Defence to Amended Plaint and further to cross examine the witnesses. To support this position the respondent relied on the case of in St Patrick Hill School Limited vs Bank of Africa Kenya Ltd (2018) eKLR where the court stated that the respondent will not be prejudiced as he will have a chance to recall witnesses for further examination, cross examination or re-examination so as to get to the bottom of the issues raised in the amended claim.

33. On the last issue, the respondent submitted that the consent on record is binding and they do not have an intention of setting it aside and that there are no compelling circumstances that would warrant the trial court to interfere with the same. He urged this court to uphold the trial’s court’s Ruling and to dismiss this appeal with costs.

Issues For Determination 34. Having considered the pleadings in the subordinate court, rival submissions before me , the authorities cited I am of the view that the following issues rise for determination;i.Whether the trial court erred in allowing the amendment of the plaintii.Whether the Respondent sought to reopen the caseiii.Whether the appellant will suffer any prejudice.

Analysis & DeterminationIssue No 1- Whether the trial court erred in allowing the amendment of the plaint

35. Section 100 of the Civil Procedure Act provides for the general power to amend in the following terms:“The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.”

36. Order 8, rule 5 of the Civil Procedure Rules also makes provision for general power to amend;(1)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.

37. These provisions have been interpreted and it is now settled that amendment of pleadings should be allowed at any stage of the case before judgment provided the amendment does not occasion injustice to the opposing party.

38. In the case of Harrison C Kariuki vs Blueshield Insurance Company Ltd[2006] eKLR the court referred to the Court of Appeal decision in Central Kenya Ltd vs Trust Bank Ltd [2000] EALR 365 and held that: -“The guiding principle in applications to amend pleadings is that the same will be liberally and freely permitted, unless prejudice and injustice will be occasioned to the opposite party. There will normally be no injustice if the other party can be compensated by an appropriate award of costs for any expense, delay or bother occasioned to him. The main thing is that it be in the interests of justice that the amendments sought be permitted in order that the real question in controversy between the parties be determined.” 39. In the case of Central Bank Ltd vs Trust Bank Ltd (2000) 2EA 365 CAK the Court of Appeal held inter alia that:-(1)The amendment of pleadings and joinder of parties was aimed at allowing a litigant to plead the whole of the claim he was entitled to make in respect of his cause of action.(2)A party would be allowed to make such amendments of pleadings as were necessary for determining the real issues in controversy or avoiding a multiplicity of suits provided.(1)There had been no undue delay.(2)No new or inconsistent cause of action was introduced.(3)No vested interest or accrued legal right was affected.(4)The amendment could be allowed without injustice to the other side(3)Accordingly all amendments should be freely allowed at any stage of the proceedings provided that the amendment or joinder did not result in prejudice or injustice to the other party that could not be properly compensated for in costs.(4)Neither the length of the proposed amendments nor mere delay were sufficient grounds for declining leave to amend. The overriding considerations were whether the amendments were necessary for the determination of the suit and whether the delay was likely to prejudice the opposing party beyond compensation costs.

40. In the case ofMwakio Versus Kenya Commercial Bank Ltd(1987) KLR 513 the court on an application for amendment had this to say: -“(1)Leave to amend should not normally be declined unless it would occasion injustice to the other side.(2)Leave to amend should always be granted unless the court is convinced that the party applying is acting malafides or that it will cause an injury to the opponent which could not be compensated for by way of costs or otherwise.”

41. From the law and foregoing authorities it is evident that the court has unfettered discretion to allow an amendment on the grounds set out in the various authorities.

42. The respondent’s case was that the appellant’s motor vehicle hit his motor vehicle and cause it damage. That he incurred costs in its repairs and it is this damage together with loss of user that he was claiming. The appellants are not being candid when they claim that the respondent is introducing a new. Nothing could be further from the truth. It is not new; it is what the appellant was aware of all along. In fact, in the Plaint the respondent had indicated that there was evidence to be given at the hearing.

43. The defendant appellant did not call any evidence. It is therefore not clear how they can say that they are being denied their defence.

44. The consent on liability was entered into before the hearing. The defendant cannot be heard to say they will be prejudiced. The consent on liability was on liability as they awaited the proof on damages. They had the witness statements, the assessment report and were aware of what the plaintiff/ respondent would be asking for from the court. They cannot therefore be heard to say that a match was stolen from them yet other than the omission of the claim to be added, they had been made aware of the full claim.

45. It is clear that the main issue here is the damages for the damage caused on the plaintiff/respondent’s motor vehicle. The omission would have denied the plaintiff respondent the opportunity to get substantive justice on the real issue that bought him to court.

46. Hence in my considered view the learned trial court exercised its discretion to achieve substantial justice in the matter by giving itself and the parties the opportunity to deal with the real issue in the matter.

Issue No.2- Whether the respondent sought to reopen the case 47. A perusal of the application clearly shows that the respondent sought to reopen the case under prayer No. 4 which read as follows;“That pursuant to granting of leave prayer for in prayer 3 above, the Draft Amended Plaint attached hereto be deemed as duly filed and the suit be re-opened for further evidence”.Issue No.3- Whether the appellant will suffer any prejudice

48. From what I have stated in the foregoing paragraphs the appellant will not suffer any prejudice.

49. As for the delay caused, this appeal by itself though it was of right has caused a delay of a whole year in the matter. But it was in the exercise of the appellants right of appeal. The respondent too has the right to seek an amendment. And the courts are here to uphold those rights and ensure that substantive justice is achieved in the long run.

50. The only way this can be achieved after the amendments is to allow parties to give more evidence, cross examine and be cross examined. Or parties can make use of the available multi –doors to access justice made available under Article 159(2) (c) of our Katiba: Court annexed mediation, Alternative Justice systems, where we at Nakuru Law Court on May 16, 2022 launched our AJS Suite - a space available for persons engaged in litigation such as this to come and settle their dispute. The Katiba requires me to remind parties and to encourage them to take this route and only come back to court for the enforcement of their agreement.

51. There is the opportunity for the parties and their advocates to come and reason together. This is more so now that parties were in agreement over liability, to save themselves further costs they are free to explore these other processes that are a guarantee to the expeditious disposal of the case and the settlement of the dispute once and for all on the terms of the parties.

52. That said on the law and the authorities cited this appeal does not have merit. I find no reason to disturb the decision of the subordinate court. The appeal is dismissed with costs to the respondent. with costs to the respondent.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 19TH DAY OF MAY, 2022. MUMBUA T MATHEKAJUDGECA EdnaM/S Murimi Ndumia Mbago & Muchela Co Advocates for the appellantsM/S Wanjiku Karuga & Co Advocates for the respondent