[2022] KEHC 16002 (KLR)

TMN v MK (Civil Suit 37 of 2013) [2022] KEHC 16002 (KLR) (Family) (2 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16002 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Civil Suit 37 of 2013

MA Odero, J

December 2, 2022

IN THE MATTER OF SECTION 6, 7 AND 8(a) 17 (1) OF THE MATRIMONIAL PROPERTY ACT (2013)

IN THE MATTER OF DIVISION OF MATRIMONIAL PROPERTY

Between

TMN

Applicant

and

MK

Respondent

Ruling

1. Before this court is the notice of motion dated July 18, 2022 by which the applicant TMN seeks the following orders:-“1. That this honourable court be pleased to grant the applicant leave to amend the amended originating summons.

2. That the further amended originating summons annexed herein be deemed as duly filed on payment of the requisite court fees.

3. That this honourable court be pleased to make such further orders it may deem fit in the interest of justice.

4. That costs of this application be in the cause.”

2. The application which was premised upon article 50(1) & 159 (2) of the Constitution of Kenya 2010, order 8 rules 3, 4, 5 & 7 order 51 rule 1 of the Civil Procedure Rules, sections 1A,1B and 3A of the Civil Procedure Act and all enabling provisions of law was supported by the affidavit of even date sworn by the applicant.

3. The respondent MK filed the grounds of opposition dated August 3, 2022 in which he opposed the application on the following grounds:-1. That the proposed amendments seek to incorporate assets/property owned and registered to a party who is not a party to the suit without first seeking to enjoin the said party.2. That the assets and shareholding of a company is determined by the provisions of the Companies Act and the assets of the company cannot be made the subject of a divorce cause.3. That this application is an afterthought only intended to further delay the proceedings as the applicant has all along been aware of the ownership of the assets which belong to the company and not the respondent.

Background 4. The applicant herein filed in the High Court the originating summons dated June 27, 2013 seeking a declaration on matrimonial property and the equal division of the said properties. The applicant sought and obtained leave from the court on October 28, 2014 to amend the originating summons claiming that she had inadvertently left out some of the properties.

5. The applicant now seeks to further amend the originating summons in order to reflect the accurate positon of some of the properties in which she claims a beneficial interest. That the proposed amendment is necessary and critical for the just determination of this case.

6. The respondent opposes the application to amend on the basis that the proposed amendments seek to incorporate properties, which belong to a company which company has not been enjoined as a party to this suit. That assets and shareholding of companies is governed by the Companies Act cap 2015.

7. The matter was canvassed by way of written submissions. The applicant filed the written submissions dated September 5, 2022 whilst the respondent relied upon his written submissions dated September 20, 2022.

Analysis and Determination 8. I have carefully considered the application before this court, the grounds of opposition filed by the respondent as well as the written submissions filed by both parties.

9. The court has the discretion at any stage of the proceedings on whether or not to grant leave to amend pleadings. The major considerations are whether the proposed amendment is necessary to enable the court reach a just determination of the matter and whether the respondent twill suffer any prejudice if the proposed amendments is/are allowed.

10. Counsel for the applicant submitted that the proposed amendments are intended to determine whether the stated properties are registered in the name of the respondents company, Drum Major Limited. It was submitted that this court has jurisdiction to make a declaration that the respondent holds shares in trust for the applicant.

11. The applicant finally submitted that [Particulars withheld] Limited need not be enjoined in this suit provided that evidence is sufficient to prove that the company is merely an agent holding assets in trust for the respondent is adduced.

12. On his part the respondent submits that the application for amendment has no legal basis. That the company is not a party to this suit any declarations made by the court may affect the rights of the company which is a third party. It is submitted that this court cannot make a determination regarding assets of the company.

13. The amendment of pleadings is governed by order 8 rule 3 (1) and (2) of the Civil Procedure Rules 2010 which provide as follows:-“(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.Where an application to the court for leave to make an amendment such as is mentioned in subrule (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 subrule if it thinks just so to do.”

14. In allowing the amendment of pleadings, the court must ascertain that the said amendment is crucial in determining the issues between the parties. The court in Institute for Social Accountability & another v Parliament of Kenya & 3 others [2014] eKLR held that:-“The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings......... The court will normally allow parties to make such amendments as may be necessary for determining the real questions in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, no new or inconsistent cause of action is introduced, and no vested interest or accrued legal right is affected and that the amendment can be allowed without an injustice to the other side.”

15. The applicant filed this suit seeking division of matrimonial property. The proposed amendments merely seek to highlight what the applicant claims is matrimonial property. Much of the arguments raised in the submissions filed by both parties are in my view matters which ought to be raised during the hearing of the suit. The court does not wish to fall into the trap of pre-judging the issue.

16. In the case of Lewar Ventures Limited v Equity Bank (kenya) Limited [2022] eKLR it was stated as follows: -“The legal parameters governing the amendment of pleadings from the above cited decisions can be summed up as follows; that the amendment should not introduce new or inconsistent cause of actions or issues; the amendment should be made timeously; it should not affect any vested interest or accrued legal right and it should not prejudice or cause injustice to the other party.”

17. The proposed amendments do not introduce any new and/or inconsistent issues. I am mindful of the fact that this application to amend the summons has come almost eight (8) years after the last amendment was allowed.

18. In as much as the application has come rather late in the day, I note that hearing of the suit has not commenced. As such, I find that no prejudice will be suffered by the respondent as he will be granted corresponding leave to leave his reply to the summons.

19. In Moses Nyambega Ondieki v Vice Chancellor Maasai Mara University & 3 others [2018] eKLR the court stated as follows:-“the powers of courts to allow amendment of proceedings are so wide that the rules permit courts to amend even on oral application provided that the amendments do not cause injustice to the to other party and provided the other party does not suffer loss which cannot be compensated with costs.”

20. Based on the forgoing I find merit in this application. I do grant leave to the applicant to amend the originating summons as prayed. Prayer (1) and (2) of the notice of motion dated July 18, 2022 are allowed. The amended summons to be served upon the respondent within fourteen (14) days. Upon service, the respondent has twenty one (21) days to file and serve and amended reply. No orders on costs.

DATED IN NAIROBI THIS 2ND DAY OF DECEMBER, 2022. …………………………………..MAUREEN A ODEROJUDGE