https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7041

Rak Media Group Company Limited & another v Lecy Supplies Limited & another (Civil Case E293 of 2025) [2026] KEHC 7041 (KLR) (Commercial and Tax) (7 May 2026) (Ruling) Neutral citation: [2026] KEHC 7041 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Case E293 of 2025 F Gikonyo, J May 7, 2026 Between Rak Media Group Company Limited 1st Plaintiff Ann Kathure Ruteere 2nd Plaintiff and Lecy Supplies Limited 1st Defendant Lydia Maina 2nd Defendant Ruling 1.The issue before the court is whether the 1st and 2nd defendants/ applicants should be granted leave to amend their defence dated 26.8.2019. 2.The issue flows from the applicant’s notice of motion dated 5.5.2025 supported by an affidavit sworn by the 2nd applicant and opposed by the replying affidavit sworn by the 2nd plaintiff/ respondent. 3.The application was canvased through written submissions dated 16.7.2025 and 16.9.2025 by the applicants and respondents respectively. 4.I have fully considered the application together with the parties respective affidavits, submissions and authorities relied on. I will refer to and analyze them as necessary. 5.The threshold 6.The court may allow a party to amend pleadings on such terms as to costs or otherwise as may be just. Order 8 Rule 3 of the Civil Procedure Rules. 7.The court’s discretion ought to be exercised judicially. Al Wakil Tranference & General Trading Company Limited v Sos-Kinderdoff International [2023] KEHC 19704 (KLR) 8.Amendments sought before the hearing should be freely allowed, if they can be made without injustice to the other side, and there is no injustice on the other side if can be compensated by costs. Eastern Bakery v Castelino [1958] EA 461 9.The respondents challenged the application for amendments on various fronts. They argue that the counterclaim is time-barred by the Limitation of Actions Act. They cited T. N. Alloy Foundry Co. Ltd v T. N. Electricity Board & Others [2004] 3 SCC 392 and Joseph Ochieng & 2 Others Trading as Aquiline Agencies v First National Bank of Chicago [1995] eKLR for the proposition that amendments barred by limitation should not be allowed. 10.The applicants asserted that the amendments seek to introduce a counterclaim against the respondents for Kshs. 30,821,681.01/- for goods delivered but unpaid for arising from the same background as their claim in this suit. They highlighted that in the defence, they had stated that the amount owed to them was Kshs. 26,588,259/- but have now ascertained it to be Kshs. 30,821,681.01/-. 11.The applicants asserted that the amendments are sought prior to the trial and that the amendments will not alter the nature of the defence or the character of the cause of action because it stems from the same transaction. They added that the amendments are geared towards assisting the court to facilitate a just and final determination of the real issues in controversy. 12.The applicants attributed the delay in filing the counterclaim to their previous advocates; Enonda & Associates Advocates. They faulted the advocates for misleading them that they had filed HCCC 606 of 2022 against the respondents to seek recovery of the sums claimed. That however, upon appointing their present advocates, Kinaro & Associates Advocates they learnt that HCCC E561 of 2022 had been filed by the previous advocates and that it had to be withdrawn to avoid duplication. 13.The applicants relied on Ocean Foods Limited v Osotpa Company Limited & 2 others [2020] eKLR to argue that however late, the amendment should be made if it can be made without injustice to the other side. 14.The applicants urged the court to allow their application and to consider that the transfer of the suit from the Magistrate’s Court was due to their need to amend the defence and put in their counterclaim which exceeded the courts jurisdiction. 15.The respondents argued that pursuant to section 4 of the Limitation of Actions Act, the time for filing the claim lapsed in June 2022, 6 years from June 2016. They highlighted that the cause of action in the counterclaim is alleged to be non-payment of goods delivered to the respondents between 2013 and 2016. 16.The respondents faulted the applicants for not filing the counterclaim earlier yet the defence was filed on 14.7.2021. They pointed out that the applicants admitted having withdrawn HCCC E516 of 2022 in which they claimed the same amount because it was time barred. 17.The respondents cited Alba Petroleum Limited v Total Marketing Kenya Ltd [2019] eKLR on the intention of the law of limitation to protect defendants against unreasonable delay. They also cited Kenya Airports Authority v Shadrack Abraham Kisongochi [2016] eKLR on the circumstances which the court would have jurisdiction to extend time, which excludes extension of time for claims for breach of contract. 18.The respondents additionally contended that the proposed amendments do not disclose a cause of action against them. They faulted the applicants for laying the blame for their delay in filing the counterclaim on their previous advocates. They argued that the applicants failed to explain their inaction between 2016 and April 2022 when the previous advocates ceased acting and from December 2022 when the current advocates were appointed. 19.The respondents urged the court to dismiss the application and to award the costs to it either way. 20.The delay is prolonged. But, is it possible to do justice to the parties despite the delay? Time barred? 21.The main question here is whether the counterclaim is time-barred. 22.I have examined the record. The plaint is dated 23.4.2018. The plaintiff’s case is that parties entered into an agreement for supply of goods and print jobs between 2013 and June 2016. A dispute ensued in August 2016 after the defendants claimed that the 1st plaintiff failed to fully pay for the goods supplied. The respondents seek refund of Kshs. 9,643,380/-, an amount it claims it overpaid due to alleged over-invoicing of goods supplied and charging VAT on export sales. 23.The defence is dated 26.8.2019. It was filed in September 2019. The defendants deny owing the Kshs. 9,643,380/- and claim that the plaintiffs owe Kshs. 26,588,259/-. 24.The applicants produced a draft amended defence and counterclaim. 25.The counterclaim is for breach of contract seeking payment of Kshs. 30,821,681.01/-. 26.The applicants as well as the respondents acknowledged that the counterclaim arises from the same background as the plaint which indicates that the dispute ensued in June 2016. 27.I find it relevant factor that the defence pleaded and claimed that the respondents owe the applicants a sum of Kshs. 26,588,259/-. The counterclaim only seeks to increase the said figure to Kshs. 30,821,681.01/-. This suit was transferred from the lower court for it would exceed the jurisdiction of CM court. 28.It would be most prejudicial to the applicants’ right to remedy, equal protection and benefits of the law to deny the amendments given the circumstances of this case. 29.I am aware that a claim that the counterclaim is time barred have been made. But, it is worth repeating that; a) the applicants as well as the respondents acknowledged that the counterclaim arises from the same background as the plaint; and b) the defence pleaded and claimed that the respondents owe the applicants a sum of Kshs. 26,588,259/-. 30.I am also aware that the respondents produced copies of a notice of preliminary objection (PO) dated 9.1.2023 in HCCC E516 of 2023 and a notice of withdrawal dated 19.1.2024. The notice of withdrawal is silent but the PO was on the basis that the applicants’ suit was time barred. 31.But, I take the view, that, limitation of action is a matter for trial and should be pleaded and so raised. 32.Therefore, costs should be sufficient to compensate the respondents. Disposal 33.In conclusion, leave to amend is allowed. The application is allowed. Cost of the application to the respondents. DATED, SIGNED AND DELIVERED THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 7TH DAY OF MAY, 2026-----------------F. GIKONYO MJUDGEIn the presence of: -Ms. Mwangi for defendant/ApplicantAndiwo for PlaintiffCA-Ivan/Aggrey