[2022] KEHC 11709 (KLR)

SBM Bank (Kenya Limited) v Shah (Civil Suit 308 of 2013) [2022] KEHC 11709 (KLR) (Civ) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11709 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 308 of 2013

A Mabeya, J

May 13, 2022

Between

SBM Bank (Kenya Limited)

Applicant

and

Hiten Shantilal Shah

Defendant

Ruling

1. Before court is the defendant’s Motion dated March 15, 2021 brought inter-alia under article 50 and 159 of the Constitution and orders 7 rule 3, 8 rules (1), (3) & (5) of the Civil Procedure Rules, 2010.

2. In it, the defendant sought leave to amend his defence and counterclaim in order to incorporate into the proceedings an entity known as Dong Fang Development Company Limited (hereinafter the ‘proposed party’).

3. The application was predicated on the grounds that the defendant has a constitutional right to seek the leave of the court to amend his pleadings; that the proposed amendment will aid in determining the real issues between the parties regarding the circumstances surrounding the sale by private treaty of the defendant’s land parcel L R no 7158/539 [original number 7158/90/7] (“the suit property”) to the proposed party; that the plaintiff will not be prejudiced by the grant of the prayers sought.

4. The plaintiff opposed the application vide a replying affidavit of Kevin Kimani sworn on May 20, 2021. He averred that the matter had come up in court severally for hearing of the main suit but the defendant’s advocates consistently sought adjournments for various flimsy reasons. That the matter was finally certified ready for hearing by Mary Kasango J on July 16, 2020 who noted that the dispute between the parties was longstanding and issued directions for the hearing of the main suit to proceed during the Judicial Service Week of August 2020.

5. The plaintiff further contended that on December 1, 2020, this court marked the defendant’s application for adjournment as the final one. That the defendant had had ample time to amend its defence and counterclaim so as to incorporate the proposed party and that filing a third party notice would have been more appropriate.

6. The plaintiff averred that, in any case, the cause of action in the suit and the counterclaim related to allegations of a breach of contract dated October 13, 2010 between the plaintiff and defendant to which the proposed party was not privy.

7. The defendant swore a supplementary affidavit on June 2, 2021 in response to the plaintiff’s replying affidavit. He stated that the plaintiff had not addressed the main issue in the application. That leave to amend should always be granted unless he had acted in bad faith which was not the case here. That the amendments sought to incorporate serious irregularities in the impugned sale to the proposed party in which it was complicit and therefore it was a necessary party.

8. Section 100 of the Civil Procedure Act provides: -“The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.”

9. Order 8 rule 5 of the Civil Procedure Rules operationalizes the above provision as follows: -“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 just.”

10. From the foregoing, there exists power to amend pleadings in order to determine the real question in controversy between the parties or to correct any error in any proceedings. This power is discretionary and can be exercised at any stage of the proceedings.

11. This matter has been dragged in the halls of justice since 2013 without the main suit being heard. The plaintiff averred that the present application was only meant to delay the expeditious trial of the suit between the parties.

12. The court notes that Kasango J certified the matter to be ready for hearing on July 16, 2020 and issued directions for the hearing of the main suit to proceed during the judicial service week in August 2020.

13. The matter was not heard then or subsequent thereto. The court notes that the application is being made after the matter has been certified ready for hearing. However, the issues being raised are serious and require to be ventilated at the trial. It is also prudent that all issues between the parties be litigated once and for all.

14. The only ground raised against the application is the delay in making the application. There is ample authority to the effect that unless prejudice against the opposite party is will result, applications for amendment should generally be granted subject to costs.

15. In the present case, the suit has not been heard. No prejudice has been shown to be suffered if the leave sought is granted. On the other hand, if the application is denied, thye defendant will forever be barred from raising the issues he intends to raise in the proposed amendments. An order for costs will compensate the plaintiff.

16. Accordingly, I grant the application. The amended defence and counterclaim be filed and served within 14 days. Defence thereto and reply if any be filed and served within 14 days of service. Costs to the plaintiff in any event.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 13TH DAY OF MAY, 2022. A MABEYA, FCIArbJUDGE