[2018] KEHC 302 (KLR)
The court held that the issues sought to be introduced by the amendments stem from the customer/client relationship between the plaintiff and the bank and therefore arise from substantially the same facts as the original cause of action. The respondent failed to demonstrate, by affidavit evidence, any prejudice that...
Source-derived case information.
- Citation
- [2018] KEHC 302 (KLR)
- Parties
- Plaintiff: Nova Industries Limited; Defendant: Ze Yang Yung Limited; Defendant: Alex Gatundu; Defendant: Kihara Muttu; Defendant: Standard Chartered Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 712 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Re Amend Plaint
- Outcome
- application allowed
- Judges
- F Tuiyott
- Legal Topics
- Amendment of Pleadings, Bank Customer Relationship, Sale of Charged Property, Breach of Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nova Industries Limited
Plaintiff
Ze Yang Yung Limited
Defendant
Alex Gatundu
Defendant
Kihara Muttu
Defendant
Standard Chartered Bank Limited
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Re Amend Plaint
Legal Issues
- 1 Whether leave should be granted to re-amend the plaint to introduce new particulars of breach and reference to a court order allegedly breached by the defendants.
- 2 Whether the proposed amendments arise from substantially the same facts as the original cause of action.
- 3 Whether the delay in seeking amendment prejudices the respondent.
Ratio Decidendi
The court held that the issues sought to be introduced by the amendments stem from the customer/client relationship between the plaintiff and the bank and therefore arise from substantially the same facts as the original cause of action. The respondent failed to demonstrate, by affidavit evidence, any prejudice that would result from granting leave to amend. The court emphasized that leave to amend should be freely given, particularly where the hearing has not commenced, and that substantial justice requires that parties be allowed to fully state their cases. Consequently, the court allowed the application for leave to re-amend the plaint.
Court Disposition
application allowed
Orders
- The Notice of Motion dated 9th October 2017 is allowed as prayed.
- Costs in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
HCCC NO. 712 OF 2003
NOVA INDUSTRIES LIMITED & ANOTHER........PLAINTIFF
VERSUS
ZE YANG YUNG LIMITED................................1ST DEFENDANT
ALEX GATUNDU.................................................2ND DEFENDANT
KIHARA MUTTU.................................................3RD DEFENDANT
STANDARD CHARTERED BANK LIMITED..4TH DEFENDANT
RULING
1. The Notice of Motion dated 9th October 2015 is for allowing. It is for Leave to re-amend the Plaint dated 16th May 2003 and is brought pursuant to the Provisions of Order 8 Rule 3(1) and 5((1) of The Civil Procedure Rules.
2. Only the 1st Defendant opposes the Application.
3. The Cause of Action that was originally pleaded is in respect to a Bank and Customer relationship which has gone sour. There was alleged default and Bank set into motion the realization process. This culminated in the sale of the charged property.
4. It is of course true as pointed out by the 1st Defendant that the cause of action sought to be introduced may appear to be a new Cause. But what is crucial is that the cause of action does not arise out of the same facts or substantially the same facts. This is the essence of Order 8 Rule 3(5):-
“(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.”
5. The issues sought to be introduced by the Amendments can be abridged as follows:-
a) It sets out the particulars of the breaches of Law or Contract that are said to have been committed in the Sale and Transfer of the Property.
b) Avers the existence of a Court Order that the Defendants are alleged to have breached in evicting the Plaintiff.
6. As the issues sought to be introduced stem from that Customer/Client relationship between the Plaintiff and the Bank, then the Cause of Action can be said to arise from substantially the same facts as the cause of action already pleaded. The Respondent who opposes the Application chose to do so by way of Grounds of Opposition and may not be able to demonstrate that the amendment sought mutates the entire suit beyond recognition.
7. In addition whilst there is a complaint about the delay in presenting the application for Leave to amend, there is no affidavit evidence to demonstrate the prejudice that the Respondent may suffer if leave is granted.
8. Leave to amend may be freely given and more so when the hearing of a matter has not commenced. Old as this matter is, it is yet to be heard and I am inclined to grant parties a chance to fully state their respective cases. Substantial justice leans towards determining a matter on the real controversies that emerge from a Dispute.
9. The Notice of Motion dated 9th October 2017 is allowed as prayed. Costs in the cause. The Amended Plaint shall be deemed as duly filed and served when requisite Court Fees is paid and which ought to be done within 14 days hereof. The Defendants have 14 days from Service to file and serve their Responses.
Dated, Signed and Delivered in Court at Nairobi this 12th day of October, 2018.
F. TUIYOTT
JUDGE
In the presence of;
Miss Fundi for Kingara for Plaintiff
N/a for Respondent
Nixon - Court Assistant