[2022] KEHC 15002 (KLR)

Patronics Service Limited v Epco Builders Limited & another (Commercial Case 227 of 2017) [2022] KEHC 15002 (KLR) (Commercial and Tax) (7 November 2022) (Directions)

Neutral citation: [2022] KEHC 15002 (KLR)

Republic of Kenya

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

Commercial and Tax

Commercial Case 227 of 2017

DO Chepkwony, J

November 7, 2022

Between

Patronics Service Limited

Plaintiff

and

Epco Builders Limited

1st Defendant

Proctor and Allen (E.A) Limited

2nd Defendant

Directions

1. The matter coming for hearing on 27th October, 2022 but this did not happen for the reason that the 1st Defendant sought to amend its defence vide an application dated 26th October, 2022. Mr. Njuguna, counsel for the Plaintiff, indicated that he was ready to proceed with one witness and found this move mischievous, the hearing date having been taken by consent. He laid emphasis that the matter is an old one having been instituted in 2017. He asked the court to allow the matte progress for hearing as it is and ignore the proposed amendments.

2. Mr. Kimosop, counsel for the Plaintiff disputed the claim that the filing of the application was out of good faith and out of abundance of caution as the same seeks to include a counterclaim against the 2nd Defendant.

3. Mr. Nyaga, counsel for 2nd Defendant told court that they were not read to proceed for the reason that the witness they intended to call had since left the 2nd Defendant Company and there was need to substitute him. He was however opposed to the application dated 26th October, 2022 on the ground that they did not file a defence to the counterclaim filed in 2018 as it was nto filed properly in law.

4. In rejoinder, Mr. Njuguna, counsel for Plaintiff argued that there can be no counterclaim by a Defendant against a Co-defendant in the suit filed by a Plaintiff unless Notice is issued under Order 1 Rule 24 of the Civil Procedure Rules. He however had no objection to the same as it does not affect the Plaintiff. As for the issue of the 2nd Defendant not being ready to proceed because they were thinking of substituting their witness since the one they intended to call had left their employment, Mr. Njuguna wondered why this had not been raised on all the occasions the matter has come up for mention.

5. Having listened to the respective submissions by all counsel for the parties herein, I have as well considered the 1st Defendant’s application dated 26th October, 2022 which substantially seeks leave to amend its defence so as to correctly factor in the 1st Defendant’s counterclaim against 2nd Defendant.

6. In my understanding this provision gives the Defendant permission to raise a conterclaim against the Plaintiff together with any other persons. Any other persons may include a co-defendant and to that extend, the Defendant has a leeway to bring a counterclaim against any Defendant in the same suit.

7. Therefore, my interpretation of this is that the 1st Defendant is well within its rights in seeking to amend its defence to include a counterclaim against the 2nd Defendant. The rule of the day is, under Order 7 Rule 8, a Defendant seeking to institute a counterclaim against a Co-defendant has to add to the title of his defence a further title similar to that in the Plaint. The application dated 26th October, 2022 is seeking to amend the 1st Defendant’s defence and introduce such title.

8. However, since the 2nd Defendant is opposed to leave being granted for such amendment, I do not wish to pre-empt the competency in the application dated 26th October, 2022 but instead and I am inclined to giving directions on its disposal.

9. Also, on the issue of substitution of witness, I find that although counsel for Plaintiff protested that it was not a bar to hearing of a suit, he had no objection to the same being allowed. The counsel for 1st Defendant did not say anything about it.

10. As regard whether adjournment was to be granted, I am of the view that the issue has been overtaken by events, and given that hearing is yet to kick off, I see no prejudice that can be suffered on the other parties which cannot be compensated by an award of damages should the matter be adjourned for the 1st Defendant to proceed with the application dated 26th October, 2022 and for the 2nd Defendant to be granted leave to substitute its witness. In any event, this will assist the court in addressing the issues in controversy at once and avoid piecemeal litigation.

11. In the upshot, the 1st Defendant’s application to proceed for hearing while the 2nd Defendant’s prayer for leave to substitute its witness is allowed with the following directions:-a.That the Application dated 26th October, 2022 be heard first before the matter is certified for hearing.b.The Plaintiff and the 2nd Defendant are at liberty to file a response to the application and the same to be filed within seven (7) from the date hereof.c.The application to be canvassed by way of written submissions and parties are granted fourteen (14) days to file their written submissions. The 1st Defendant/Applicant shall go first.d.The 2nd Defendant is granted leave to substitute its witness within 30 days from today.e.Highlighting submissions on 25th January, 2023.

It is so ordered.

DIRECTIONS DELIVERED VIRTUALLY, DATED AND SIGNED IN NAIROBI THIS…7TH......DAY OF .....NOVEMBER....., 2022. D. O. CHEPKWONYJUDGEIn the presence of:Mr. Njuguna counsel for PlaintiffM/S Kizi holding brief for Mr. Kimosop for 1st DefendantM/S Nyagah counsel for 2nd Defendant