[2023] KEHC 26560 (KLR)

Pacific Construction Limited v Ceivienters Limited (Civil Suit 634 of 2010) [2023] KEHC 26560 (KLR) (Commercial and Tax) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26560 (KLR)

Republic of Kenya

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

Commercial and Tax

Civil Suit 634 of 2010

FG Mugambi, J

December 8, 2023

Between

Pacific Construction Limited

Plaintiff

and

Ceivienters Limited

Defendant

Ruling

1. This ruling determines the application dated 19th October 2022. It is brought under sections 1A, 1B & 3A of the Civil Procedure Act, order 8 rule 3, and order 51 rules 1 and 4 of the Civil Procedure Rules2010. The applicant seeks leave to amend the statement of defence and counterclaim. The application is premised on the grounds stated on the face of it and the supporting affidavit and supplementary affidavit both sworn by Dipak Halai, a director of the applicant. The applicant filed written submissions dated 3rd May 2021.

2. The application is opposed by the respondent vide a replying affidavit dated 17th March 2023 and substantiated by the written submissions dated 6th April 2023.

3. The applicant’s case is that they had instructed new counsel in the matter, who upon coming on record had reviewed the pleadings filed, and advised that it was necessary to amend the same so as to assist this Honourable Court to effectually determine the issues in dispute. The applicant argues that the amendment is meant to capture the issues in controversy as pertaining to the applicant’s case with more precision and clarity.

4. The respondent opposes the said application by way of a replying affidavit sworn by Victor Orandi, Counsel for the respondent, on 17th March 2023. The respondent argues that the same is an attempt to introduce new and material facts that were not originally pleaded and to change the original cause of action. The respondent argues that the amendment would result in undue delay in the hearing and determination of this matter as it may even re-open the pleadings. The respondent takes issue with the timing of the application, since the applicant had been aware of the commencement of this suit in 2010.

Analysis 5. I have carefully considered the pleadings, evidence and submissions raised by rival parties in support of their cases. The main issue is whether the applicant should be granted leave to amend his statement of defence and counterclaim.

6. Section 100 of the Civil Procedure Act and order 8 rule 3 of the Civil Procedure Rules, 2010, gives the court discretion to allow parties to amend pleadings at any time, and on such terms as to costs or otherwise as it may think fit. The cardinal consideration is that amendments should serve the purpose of determining the real issues in dispute, as was echoed by the court inKK Lodgit LimitedvGeminia Insurance Company Ltd & Another, (2021) eKLR.

7. The Court of Appeal has further set out the principles which the Court should consider in granting leave to amend pleadings in Joseph Ochieng & OthersvFirst National Bank of Chicago, CA No 54 of 1989 (unreported) and in Elijah Kipngeno Arap Bii V Kenya Commercial Bank Limited [2013] eKLR. These are that:i.the power of the court to allow amendments is intended to determine the true substantive merits of the case;ii.the amendments should be timeously applied for;iii.power to amend can be exercised by the court at any stage of the proceedings;iv.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;v.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.

8. I have perused the draft Amended Statement of Defence and Counterclaim which is dated 18th October 2010. The amendments that the applicant seeks, besides correcting the record on the new Counsel on record, are to include the particulars of breach of contract, loss and special damages in its claim.

9. The amendments in question arise out of the same facts as the cause of action in respect of which relief has already been claimed against the defendant in the same suit. I therefore do not agree that the amendment introduces a new cause of action. I am also satisfied that there has not been inordinate delay by the new counsel on record in making the application. There will be no prejudice to the plaintiff as the plaintiff will also be at liberty to respond to the issues raised by the defendant.

10. The fact that the application is made almost 2 years after filing of the suit does not in itself, in the absence of any other evidence impute bad faith on the applicant and take away its right to have the dispute determined on merits. The applicant has explained that the need to amend the pleading has been pointed out by new Counsel on record. I also note that the matter has not yet been listed for hearing.

Determination 11. For all the foregoing reasons, the application to amend the statement of defense is merited. In order to ensure that this amendment does not cause unnecessary delay, parties shall take directions which they shall comply with for purposes of preparing the matter for hearing. The costs of the application shall await the outcome of the suit.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 8TH DAY OF DECEMBER 2023. F. MUGAMBIJUDGE