[2017] KEHC 654 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

ELC CASE NO.47 OF 2013

SBI INTERNATIONAL HOLDINGS AG KENYA…PLAINTIFF

VERSUS

REUBEN KIPKORIR J. T. BORE………………..DEFENDANT

RULING

What is coming up for determination is the plaintiff’s application dated 22nd February 2017 for leave to amend the Plaint. The application is brought pursuant to sections 1A, 1B 3A and 63 of the Civil Procedure Act and order8 Rule 3 off the Civil Procedure Rules. It is premised on the grounds set out in the Notice of Motion and the supporting affidavit of Shaul Cohen sworn on the 22nd February 2017.

In his affidavit Mr. Shaul Cohen who is the plaintiff’s Operations Manager depones that following the court’s ruling dated 28th May 2014 which held that the lease agreement dated 18th August 2012 between the parties herein was null and void for lack of Land Control Board consent, it became necessary for the plaintiff to amend the plaint to claim special and general damages arising from the defendant’s breach of the agreement by failing to obtain the said consent. He further depones that the proposed amendment will enable the court to determine the real issues in controversy between the parties.

The application is opposed by the defendant through his Replying Affidavit and Grounds of Opposition. In his Replying Affidavit sworn on the 26th April 2017 the defendant depones that the application has been filed belatedly as the Ruling upon which it is based was made 3 years ago. He further depones that the plaintiff seeks to bring a new cause of action through an amendment.

The parties agreed to canvass the application by way of written submissions and both parties filed their submissions articulating their respective positions. The main issue for determination is whether the plaintiff is entitled to the orders sought.

A brief background of the case is necessary in order to put things into perspective. The Plaintiff instituted the case herein against the defendant on October 2013. The Plaintiff’s case is based on a lease agreement dated 18th August 2012 whereby the defendant leased his land parcel number KIPKELION /CHEPSEON BLOCK 2 (KISABO) 88 to the plaintiff for purposes of a quarrying site. Before the expiry of the lease, the defendant sought to terminate the lease and evict the plaintiff. The reliefs sought in the Plaint are for an injunction to restrain the defendant from interfering with the plaintiff’s occupation and use of land parcel number KIPKELION/CHEPSOEN BLOCK 2/(KISABO) 88 and a mandatory injunction compelling the defendant to comply with the terms of the lease agreement dated 18th August 2012.

Simultaneously with the Plaint the Plaintiff filed a Notice of Motion seeking a temporary injunction to restrain the defendant from interfering with the plaintiff’s occupation of the suit property pending the hearing and determination of the main suit. The said application was heard and a Ruling was delivered on 28th May 2014 dismissing the application on the ground that the lease agreement on which the plaintiff was relying was null and void for lack of Land Control Board consent.

In his submissions, counsel for the plaintiff has argued that the purpose of the amendment sought is to enable the court determine the real question in controversy as provided by section 100 of the Civil Procedure Act as read with Order 8 Rule 3 of the Civil Procedure Rules, 2010. They have cited the case of Central Kenya Ltd V Trust bank Ltd and 5 Others (2000) eKLR which I concur with where the court of Appeal took cognizance of theAIR commentaries on the Indian Civil Procedure Code Vol 2, 6th Ed by Chittaley and Raoin which the learned authors state as follows:

“that a party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new and inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the amendment can be allowed without injustice to the other side…They further state that an amendment merely clarifying the position put forward in the plaint or written statement of defence must be allowed.

Furthermore, the case ofElijah Kipngeno Arap Bii v Kenya Commercial Bank (2013) eKLRwhere the Court of Appeal citing Bullen, Leake and Jacobs Precedents of Pleadings 12th Editionstates as follows:

The power to so amend can be exercised by the court at any stage of the proceedings ( including appeal stage); 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…that if the proposed amendment introduces a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially different character which would more conveniently be made the subject of a fresh action..”

It has been submitted by the applicants that the proposed amendments do not introduce a new cause of action.

The principles that should guide the court in dealing with applications for amendments are elaborated in Mulla, the Code of Civil Procedure, 18th Ed, Vol 2 pages 1751-1752 which has been cited in various authorities including the case of Coffee Board of Kenya V Thika Coffee Mills Limited & 2 Others (2014) eKLR where it is stated as follows:

i. Amendments should be allowed which are necessary for determination of the real controversies in the suit;

ii. The proposed amendment should not alter and be a substitute of the cause of action on the basis of which the original list was raised;

iii. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of fact would not be allowed to be incorporate by means of amendments;

iv. Proposed amendments should not cause prejudice to the other side which cannot be compensated by means of costs;

v. Amendments of a claim or relief barred by time should not be allowed;

vi. No amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time

vii. No party should suffer on account of the technicalities of law and amendment should be allowed to minimize the litigation between the parties

viii. The delay in filing the petitions for amendment should be properly compensated by costs

ix. Error or mistake, which is not fraudulent, should not be made the ground for rejecting the application for amendment of pleadings”

From the foregoing it is clear that the court has a wide discretion in dealing with an application to amend pleadings unless the other side is able to demonstrate that they would seriously be prejudiced by the proposed amendment.

The Defendant has opposed the application on the grounds that the lease agreement upon which the Plaint has based its claim was found to be void by the court’s ruling dated 28th May 2014. He therefore maintains that consequently, the matters raised in the application amount to a new cause of action. This is an interesting point which can only be canvassed at a full hearing. The issue of delay in bringing the application has also been raised. Indeed, it is not clear why the applicant took more than three years to file its application and only did so after the defendant applied to have the suit dismissed for want of prosecution, but this does not take away the courts discretion to grant the application.

Having carefully considered the application, affidavits, pleadings and submissions of counsel as well as the law on amendment of pleadings, and also mindful of the overriding objective of the Civil Procedure Act which is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes, I am of the view that the application is merited and I grant it. The Plaintiff shall however bear the costs of the application to cushion the defendant from the inconvenience caused. I further direct that draft amended plaint be deemed as duly filed upon payment of the requisite court fees. In order to pave the way for an expeditious disposal of this suit, I direct that the parties comply with order 11 of the Civil Procedure Rules within 45 days from the date hereof.

Dated, signed and delivered this 3rd day of November 2017.

J.M ONYANGO

JUDGE

In the presence of:

Mr. Siele for the Defendant/Respondent

No appearance for the Plaintiff/Applicant

Court Assistant Rotich