[2022] KEHC 13832 (KLR)

Muburi-Muita v Standard Group Limited & 5 others (Civil Suit 74 of 2016) [2022] KEHC 13832 (KLR) (Civ) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13832 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Civil

Civil Suit 74 of 2016

JK Sergon, J

October 7, 2022

Between

Ambassador Zachary Muburi-Muita

Plaintiff

and

Standard Group Limited

1st Defendant

Ian Wafula

2nd Defendant

Ben Kitili

3rd Defendant

Linda Ogutu

4th Defendant

John Allan Namu

5th Defendant

Betty Kyalo

6th Defendant

Ruling

1. The subject matter of this ruling is the notice of motion dated February 21, 2020 taken out by the plaintiff/applicant herein and supported by the grounds set out on its body and the facts stated in the affidavit of ambassador Zachary Muburi-Muita the applicant. The applicant sought for an order for leave to amend the plaint as per the draft amended plaint attached and to be allowed to recall PW-1 to testify for purposes of adopting the amended plaint and for such further cross examination as might be necessary.

2. In response to the application, the defendants filed grounds of opposition dated the October 29, 2020 and averred as follows:i.The application is frivolous, an abuse of court process and made malafides as it is meant to cure the defects of the case exposed in cross-examination and thus unmerited.ii.If the application is allowed, the same would occasion great prejudice to the defendants which could be made good by costs as the same will be tantamount to violating the defendant’s right to fair and impartial hearing which cannot be compensated by an award of costs as this is a right that cannot be limited.iii.This being a court in an adversarial system the plaintiff should be left to prosecute his cases as drafted and not assisted by the honourable court to correct gaps in his case exposed through cross-examination.iv.The plaintiff is guilty of latches having brought the application for amendment more than four years after filing of the suit and only after cross-examination.v.The plaintiff is guilty of latches having brought the application for amendment more than four years after filing of the suit and only after cross examination of the plaintiff.vi.The plaintiff has failed and/or neglected to explain the delay in bringing the amendment application in his assumption that the honourable court will grant the application for amendments as of right.vii.The amendment sought herein introduces a new cause of action as the prayers now sought against the defendants are time barred.viii.For the foregoing reasons the plaintiff has not brought himself within the discretionary jurisdiction of this honourable court ought not to exercise its discretion in favour of an indolent litigant.ix.The application should be dismissed with costs to the defendants.

3. It was deponed by the applicant that the draft amendments to the plaint are significantly material for the advancement of their claim without substantially changing the nature of the claim and no prejudice or delay shall be visited upon the respondents should the application be allowed.

4. The applicant avers that draft amendments are not particularly novel as some are captured in documents already filed in court whilst some have been introduced for the purpose of removing ambiguity in his claim and that they do not require the production of additional evidence.

5. In his submissions, the applicant submitted that if the amendment is not allowed, the court will proceed on a false hypothesis and that the court would proceed to determine the suit without considering key issues in dispute. On this the argument the applicant relied on the case of Institute for social accountability &another Parliament of Kenya & 3 Others [2014] eKLR the court of Appeal held as follows“The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings.”

6. In response, the defendants/respondents submitted that the applicant has failed to satisfy any of the requirements that would have empowered this honourable court to exercise its discretion and allow the amendment.

7. The respondents contend that the amendment sought is merely technical as it seeks to introduce words which were whether negligently or not, left out by the advocate who drafted the plaint and that the real issue for determination is already before this court.

8. It is the respondents’ submissions that the intended amendment seeks to introduce a new cause of action that would deny the them the right to plead limitation of time and that the prejudice that they will face, which has been occasioned by the applicant’s application is the violation of their rights to fair trial which includes the right to have the dispute determined expeditiously.

9. The respondent relied on the case of Kassam v Bank of Baroda (Kenya) Ltd [2002] eKLR where it was stated that:“In other an adjournment may be necessitated. In its turn this may, however, bring with it other evils, such as further delay of the case and concomitant expense, disruption of the court calendar, and so on.”

10. Order 8 Rules 3 and 5(1) of the Civil Procedure Rules stipulates as follows: -(3)(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.3(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.General power to amend5(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 documents to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.

11. The principles upon which a court acts in an application to amend a pleadings were set out by the Court of Appeal in Central Kenya Limited v Trust Bank limited [2000] eKLR which referred to commentaries in the Indian Civil Procedure Code by Chittaley and Rao where the learned authors stated as follows with regards to the rule to amendment of pleadings;“A party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the amendment can be allowed without injustice to the other side.”

12. It is apparent that the courts’ discretion to amend pleadings at any stage of the proceedings is wide and unfettered except that it should be exercised judicially and upon the defined principles so as to bring out the real issues in controversy between the parties and on such terms as may be just.

13. The proposed amendments are in three aspects as follows;i.To disclose the plaintiff’s current employment which is different from his employment at the date the suit was filed.ii.To clarify that all the reliefs sought in the plaint are directed to the defendants, jointly and severally.iii.To clarify that the plaintiff seeks damages under the following heads which are unnecessarily lumped together in the plaint as currently worded:a)General damagesb)Aggravated damagesc)Exemplary and/or punitive damages.

14. Although these amendments are sought this late, they are necessary and, I believe, made in good faith. The proposed amendments are not introducing a new cause of action but rather clarifying the plaintiff’s existing case. For instance, it is important to state the claim is directed against all the defendants and the ambiguity is pardonable error on the part of the plaintiff’s counsel. The heads of damages are largely the same as per the original plaint but there was need to remove the ambiguity.

15. It is also my view that the proposed amendments are not in any way prejudicial to the respondents. They may have caused inconvenience to them and even delayed the conclusion of this matter, but that can be compensated by an award of damages.

16. For these reasons, I will allow the application and order that leave is hereby granted to the plaintiff to amend the plaint as shown in the filed draft. The same to be filed and served within 7 days from today’s date. The defendants have leave to amend his amended defence, if need be, within 7 days’ of serve and a further leave to recall PW-1 ambassador Zachary Muita to testify in respect of the amended plaint. Costs to abide the outcome of this suit.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF OCTOBER, 2022. ...............................J. K. SERGONJUDGEIn the presence of:……………………………. for the Plaintiff……………………………. for the Defendant