[2022] KEHC 14598 (KLR)

Sehit Investments Limited v Onyango & 3 others (Civil Case 705 of 2009) [2022] KEHC 14598 (KLR) (Commercial and Tax) (14 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14598 (KLR)

Republic of Kenya

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

Commercial and Tax

Civil Case 705 of 2009

WA Okwany, J

October 14, 2022

Between

Sehit Investments Limited

Plaintiff

and

Josephine Akoth Onyango

1st Defendant

Simon Otieno

2nd Defendant

Savings & Loan Kenya Limited

3rd Defendant

The Attorney General

4th Defendant

Ruling

1. The plaintiff filed the application dated December 14, 2021 seeking the following orders:-1. That this honorable court be pleased to grant leave to the plaintiff/applicant to amend its Plaint herein September 2009. 2.That upon grant of leave, the plaintiff do file an amended plaint within 14 days of leave.3. That in the alternative to prayer 2 hereof, the annexed draft amended plaint be deemed as duly filed and served upon payment of the requisite fee.4. That the costs of the application be in the cause.

2. The application is supported by the affidavit of the plaintiff’s director mr Chris Mulwa and is based on the following grounds:-a.That the applicant filed the suit herein on misstated and misapprehended facts relying on its former advocate's skill, advise, drafting and filing thereof.b.That it is important to bring the correct facts before court before the hearing of the Main Suit.c.That the intended amendment will enable this honourable court to effectively and completely adjudicate upon and settle the contentious issues in this matter.d.That the hearing of the main suit has not commenced and the intended amendment will cause no prejudice to the defendants who in any event have a right to file an amended defence.

3. The 1st and 2nd defendant application opposed the application through the 1st defendant’s replying affidavit wherein they state that application is intended to derail the matter and change the entire cause of action. The 1st defendant further states that the delay in prosecuting the case has caused her a lot of financial strain and emotional torture.

4. The application was canvassed by way of written submissions which I have considered. The main issue for determination is whether the plaintiff has made out a case for the granting of orders to amend the plaint.

5. Section, 100 of the Civil Procedure Act (Cap 21) laws of Kenya, provides that: -“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”.

6. Order 8 rule 3 of the Civil Procedure Rules, 2010, states:-(1)Subject to order 1, rules 9 and 10, order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.(2)Where an application to the court for leave to make an amendment such as is mentioned in sub-rule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such sub-rule if it thinks just so to do.(3)An amendment to correct the name of a party may be allowed under sub-rule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.(4)An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under sub-rule (2) if the capacity in which the party will sue is one in which at the date of filing of the plaint or counterclaim, he could have sued.(5)An amendment may be allowed under sub-rule (2) notwithstanding that its effect will he to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.

7. The plaintiff seeks leave to amend the plaint dated September 24, 2009 on the grounds that its former advocates filed the suit on misstated and misapprehended facts. According to the plaintiff, the proposed amendment will not prejudice the defendants as the main suit was yet to be heard.

8. The defendants’ case, on the other hand, was that the application was brought in bad faith, without any justifiable reasons and after a period of thirteen years. It was the defendants’ case that the proposed amendment will change the entire architecture of the case and cause of action.

9. In Ochieng and others v First National Bank of ChicagoCivil Appeal Number 147 of 1 (unreported) as cited with approval in St Patrick’s Hill School Ltd v Bank of Africa Kenya Ltd [2018] eKLR the Court of Appeal sets out the principles governing amendment of pleadings as follows:-a)the power of the court to allow amendments is intended to determine the true substantive merits of the case;b)the amendments should be timeously applied for;c)power to amend can be exercised by the court at any stage of the proceedings;d)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;e)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.

10. In the cited case, the court cited, with approval Bullen, Leake & Jacobs in Precedents of Pleadings, 12th edition and stated as follows regarding amendment of pleading:-“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..”

11. Applying the above principles to the circumstances of this case, I note that the plaintiff instituted this suit against the defendant through the plaint dated September 24, 2009 and the defendant filed their statement of defence and counterclaim on November 24, 2009. I have perused the proposed amended plaint and I note that the cause of action has not changed. I further note that even though the instant application was brought 13 years after the filing of the suit, the hearing of the main suit has not commenced.

12. I therefore find that the defendants will not be prejudiced by the proposed amendments in a manner that cannot be compensated by way of costs. In the premises I find merit in the application and allow it in the following terms: -1. The applicant is granted leave to amend the plaint.2. The draft amended plaint attached to the application shall be deemed as duly filed upon payment of the requisite court filing fees.3. The defendants are at liberty to file their respective amended statements of defence, should they deem it necessary, within 15 days from the date of service with the amended plaint.4. The respondents are awarded thrown away costs and the costs of this application.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF OCTOBER 2022. W. A. OKWANYJUDGEIn the presence of: -Mr. Nyandieka for the plaintiff.Ms Mudibo for Mbobu for the 3rd defendant.Court Assistant- Sylvia