[2022] KEHC 1726 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

CIVIL CASE NO. 245 OF 2011

STEP UP HOLDINGS (K) LTD...................................APPLICANT

VERSUS

MT. KENYA UNIVERSITY......................................RESPONDENT

RULING

1. The Notice of Motion application by the applicant dated 16th September 2021 prays for leave to further amend the plaint as per the draft further amended plaint attached to the sworn affidavit of Bernard Mwarania dated 21st September 2021.

2. The applicant claims that there is need to amend the plaint further so as to factor in the debts owed by the students and the issues which were to be adjudicated upon in the Petition Number 29 of 2014 which was struck out by this court.

3. In essence the applicants depose that it would want to clean the pleadings herein and bring clearly the sum total of its claim against the defendant less issues which had been overtaken by events.

4. The respondent vide the replying affidavit of Anthony Mwangi Ndungu has opposed the application on the grounds that what the applicant is seeking is to introduce issues which have already been overtaken by events and specifically circumvent the Limitation of Actions Act. That most of the issues it seeks to introduce were done way before 2011 and by amending the plaint further it in essence through the backdoor evading the provisions of the Act.

5. The respondent further averred that what the applicant is doing is wasting much judicial time since the dismissed suit was found by the trial court to be subjudice and res judicata. That allowing the application will be permitting two sets of issues or cause of actions to be litigated in the same matter.

6. The court has perused the application, the draft further amended plaint as well as the lengthy submissions by the parties.

7. The submissions essentially by the respondent argues that the applicant has not met the threshold required to amend the plaint and that the issues introduced are such that they are time barred. In other words, allowing the application will be breaching the provisions of Section 4 of the Limitation of Actions Act.

8. The court having read the said submissions and the attached authorities finds the application meritorious for the following reasons. In the first place the Provisions of Order 8 rule 5 of the Civil Procedure Act are clear. The same states as hereunder.

“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.”

9. Essentially the court will permit leave to amend at any stage of the proceedings on such terms that it may deem necessary.

10. Looking at the history of this matter it would appear in my view that the issues between the two parties were in a continuous series. In other words, the memorandum of understanding covered wider issues which are not possible to articulate on the face of the amended plaint. The court for instance note that there were issues to do with the students, renovations, furniture and other improvements. There were issues as well to do with finances, profits and losses and general issues to do with revenue.

11. On the face of it, it is not possible to find at what point these issues arises or end. Again it is not possible to find out whether the statute of Limitation has been breached or not. This calls for thorough oral evidence where supporting documentations may be adduced. The position held by the respondent could be true or not. It is only after the evidence has been tendered that it shall be possible to tell what is time barred or not.

12. In line with the above observation, the respondent if need be may take it up at the determination stage or even at the cause of the proceedings. Otherwise this court may be locking out some details which it could help in determining the controversy between the two parties which has led to several protracted cases.

13. The provisions of Article 159 of our Constitution gives such a party the opportunity and latitude to ventilate its issues. In the same vein the respondent is granted all the rights of rebuttal. Both must be granted equal opportunity in law. Let the applicant bring out the issues it things are germane and contestable. The respondent shall if necessary file its defence. The court does not see any prejudice to be suffered by the respondent.

14. The court in EASTERN BAKERY V. CASTELINO (1959) E A 461 stated as much.

“It will be sufficient for purposes of the present case, to say that amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side, and that there is no injustice if the other side can be compensated by costs: Tildesley v. Harper (10 (1878), 10 Ch. D. 393; Clarapede v. Commercial Union Association (2) (1883), 32 W.R. 262. The court will not refuse to allow an amendment simply because it introduces a new case: Budding v. Murdoch (3) (1875), 1 Ch. D. 42. But there is no power to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit: Ma Shwe Mya vs. Maung Po Hnaung (4) (1921), 48 I.A. 214; 48 Cal. 832. The court will refuse leave to amend where the amendment would change the action into one of a substantially different character: Raleigh v. Goschen (5), [1898] 1 Ch. 73, 81; or where the amendment would prejudice the rights of the opposite party existing at the date of the proposed amendments, e.g. by depriving him of a defence of limitation accrued since the issue of the writ: Weldon v. Neal (6) (1887), 19 Q.B.D. 394; Hilton v. Sutton Steam Laundry (7), [1946] K.B. 65. The main principle is that an amendment should not be allowed if it causes injustice to the other side”.

15. In the premises, the application is allowed, the applicant granted 14 days to file and serve the further amended plaint.

16. Costs of this application to the respondent.

DATED SIGNED AND DELIVERED VIA VIDEO LINK THIS 10TH DAY OF MARCH 2022.

H. K. CHEMITEI.

JUDGE