[2023] KEHC 23226 (KLR)

Orodho v Kenya Revenue Authority & another (Civil Suit 49 of 2017) [2023] KEHC 23226 (KLR) (Civ) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23226 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 49 of 2017

JN Mulwa, J

October 5, 2023

Between

Dr. Apollo Bwonya Orodho

Applicant

and

Kenya Revenue Authority

1st Respondent

National Transport & Safety Authority

2nd Respondent

Ruling

1. This ruling is in respect of the Plaintiff’s Application dated April 17, 2023 in which he seeks leave of court to further amend his Amended Plaint interms of the draft Further Amended plaint annexed to the application, and the same to be deemed as the duly Further Amended plaint and filed upon payment of the requisite Court filing fees. It is based upon provisions of Order 8 Rule 3, 5 and 8 of the Civil Procedure Rules and Sections 1A, 1B, 3 and 3A of the Civil Procedure Act.Dr Apollo Bwonya Orodha the Plaintiff swore the Supporting Affidavit on the April 17, 2023.

2. The Application is opposed by a Replying Affidavit sworn on the June 27, 2023 by Conrad Omondi an officer of the 1st Respondent.

3. The 2nd Respondents Advocate Ms Midera told the Court that they were not opposed to the application.

4. The Application was argued by Mr Munikah Advocate for the Plaintiff while Mr Shinjenje argued for the 1st Respondent.

5. The Court has read through and considered the reasons for the application as well as the grounds for opposition and the cited authorities.

6. The case was filed way back in 2017 and has on several occasions been scheduled for hearing but for one reason or another has not yet taken off. During the period, the Plaintiff amended the Plaint on the August 13, 2014 and now seeks to further amend the same for the main reason that the amendments sought are necessary for determination of the real questions in controversy between the parties, to include belated claimable special losses and damages, for the ends of Justice to be met. The applicant claims that the proposed amendments will not prejudice the defendants in any way.

7. Looking at the proposed amendments, the applicant is desirous to include what he calls claimable damages, both special and general incurred on account of the subject motor vehicle not having been registered and licensed by the defendants after the first amendments on or before the August 13, 2014 until January 2017 when the vehicle was eventually registered in the Plaintiff’s name as Kxx 8xxL; the same having been purchased on February 4, 1997 with a foreign diplomatic registration number plate 4xxxK.

8. During the intervening period, it is the plaintiff’s averments that, for the 21 years, he incurred actual costs and losses of maintaining, securing and keeping the vehicle serviceable, hoping that every day it would be registered which was not done until February 4, 2017. For the above reason, the Plaintiff submits that it is necessary for leave to be granted to claim the losses he incurred as stated in the draft amended plaint annexed to the application; and further that the sought amendments were caused by NTSA as the registration authority when it came in, in place of KRA as the registration authority, hence the need for the amendments.

9. For the 1st Respondent, it is its case that the proposed amendments are not necessary for the determination of the real issues in controversy; that they are unfair and prejudicial to itself and will introduce a new cause of action several years after the alleged cause; which if allowed will bring endless litigation.

10. Upon consideration of the rival parties' pleadings and submissions, I find and flag only one issue for determination: Whether the applicant/plaintiff is deserving of leave of Court to further amend his plaint.Order 8 Rule 5 Civil Procedure Rule provides:5 (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 suit.

11. Order 8 Rule 3 Civil Procedure Rule provides thus:1. Subject to Order 1, Rules 9 and 10, Order 24 Rule 3,4,5 and 6 and the following provisions of this rule, the court may at any stage of 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.

12. The purpose of amendments of pleadings, as captioned in the case Institute for Social Accountability and another V. Parliament of Kenya & 3 others (2014) e KLRis -a.'…to enable the parties to alter their pleadings so as to ensure that the litigation between them is concluded, 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 readily 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….The Court will normally allow parties to make such amendments as may be necessary for determination of the real questions in controversy or to avoid a multiplicity of suits provided there has been no undue delay, no new or inconsistent cause of action is introduced and no vested interest or accrued right is affected and that the amendments can be allowed without an injustice to the other side'In summary, the only bars to leave to amendment of pleadings are-b.Inconsistent cause of action.c.Introduction of a new cause of action.d.No vested interest or accrued legal right is affected.e.If no injustice is caused to the other side.

13. The above parameters have been applied in numerous application of this nature, among them: St Patrick’s Hill School Limited –vs- Bank of Africa Kenya Limited (2018) e KLR, Lewar Ventures Limited –vs- Equity Bank (Kenya) Limited (2022) e KLR; Angelina Chepng’etich Kimaiti V Tom Nong’are Nyariki & another (2021) e KLR.

14. Other than the 1st Respondent stating that allowing the amendments sought would introduce a new cause of action, no particulars of such new cause of action were provided.The delay in bringing the application after the first amendment around August 13, 2014 in my view has been sufficiently explained, being due to the changes in the Registration of Motor Vehicles from the 1st Defendant, Kenya Revenue Authority to the 2nd Defendant, National Transport and Safety Authority.As to the additional costs and losses, that too has been explained to the satisfaction of the Court.

15. It is also important to state here that the proposed amendments will, as the law demands, be subjected to prove to the required standards.For the special damages it is trite and settled that such damages must not only be specifically pleaded, but also strictly proved.The amendments if allowed will therefore not place the 2nd Respondent to a disadvantage or cause it any perceivable prejudice as proof of the same will be demanded by the Court. see Ching Wu Yi Limited & another –vs- Irene Leah Musau (2022) e KLR, Kenya Women Microfinance Ltd –vs- Martha Wangari Kamau (2021) e KLR, Swaleh C. Kariuki & another –vs- among others, Violet Owiso Okinyu (2021) e KLR.

16. The upshot is that the court is satisfied that the plaintiff is deserving of the orders he seeks. The Further Amended Plaint shall be filed and served within 7 days of this ruling.

17. Further, upon closure of pleadings, the plaintiff shall cause the suit to be placed before the Deputy Registrar of this court for Pretrial directions pursuant to provisions of Order 11 of the Civil Procedure Rules within 60 days to fast-track the progression of the suit due to its old age.

18. Finally, the Plaintiff shall pay throw away costs to the 1st Respondent, Kenya Revenue Authority, to be agreed or taxed.

Orders accordingly.

Dated, Delivered and Signed in Nairobi this 5thDay of October 2023. JANET MULWAJUDGE