[2011] KEHC 739 (KLR)

CIVIL PRACTICE AND PROCEDURE

An amendment to pleadings can be allowed

even if the effect of it would be to admita claim time barred.

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 63 OF 2001

WILSON OGOT OWERA T/A OGOT & ASSOCIATES..............................................PLAINTIFF

-VERSUS-

AMOS KASASIRA...............................................................................................1ST DEFENDANT

SIMON N. NGUGI..................................................................................................2ND DEFENDANT

REV. KISIA...........................................................................................................3RD DEFENDANT

MR. KABAGE.......................................................................................................4TH DEFENDANT

FRANCIS JOMO.................................................................................................5TH DEFENDANT

REV. KIATU..........................................................................................................6TH DEFENDANT

REV. MARCOS HAMISINI..................................................................................7TH DEFENDANT

RULING

I am asked to rule on a preliminary objection raised on behalf of the defendants. The objection is that the cause of action is time barred. The cause of action arose in the year 2001. The background of this matter is that the plaintiff initially sued the 1st and 2nd defendants. On obtaining the court’s leave the plaintiff amended its plaint on 2nd September, 2005 by joining in this action Rev. Kisia as 3rd defendant, Mr. Kabage as the 4th defendant, Francis Jomo as the 5th defendant, Rev. Kiatu as the 6th defendant and Rev. Marcos Hamisini as the 7th defendant.

Those defendants were sued by that amended plaint in their capacity as ‘registered trustees of the Mombasa Baptist High School’. This court by a ruling delivered on 5th December, 2008 found that those defendants that is; 3rd to 7th defendant were wrongly sued. Consequently the suit was struck out as against them. The plaintiff has filed a notice of motion dated 15th February, 2011 whereby it seeks leave to amend its plaint to include the very same defendants once again in this action by suing them in their capacity as ‘trustees of the Baptist Convention of Kenya’. It is that application which is the subject of the preliminary objection. The application is dated 15th February 2011. It has not yet been prosecuted.

Learned counsel Mr. Ananda for the defendant submitted that the suit was founded on defamation and was accordingly time barred by virtue of The Limitation Act Cap 22. The plaintiff by its plaint alleges that the defamation occurred on or about 19th December, 2000. According to Mr. Ananda argued that under Cap 22, the plaintiff should have brought this action within 12 months of the alleged wrong. Section 4 (2) of Cap 22 provides as follows:

“(2) An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:

Provided that an action for libel or slander may not be brought after the end of twelve months from such date.”

The defendants’ learned counsel submitted that the suit was struck out as against the 3rd to the 7th defendants about 3 years ago. That the plaintiff did not seek to amend the plaint in those 3 years. He submitted that the plaintiff is not entitled to the amendment now sought. That the plaintiff could only amend the plaint to join the 3rd to the 7th defendants where leave has been obtained to file a suit out of time. The defendant termed the plaintiff’s application as an abuse of the court process.

The preliminary objection was opposed by the plaintiff’s learned counsel Ms. Umara. Learned counsel relied on Order 1 Rule 14 of the Civil Procedure Rules 2010. That rule provides as follows:

“14. Any application to add or strike out or substitute a plaintiff or defendant may be made to the court at any time before trial by chamber summons or at the trial of the suit in a summary manner.”

The plaintiff’s learned counsel argued that what the plaintiff seeks to do by its amendment is authorized by that rule. Further she argued that the plaintiff’s proposed amended plaint is not a new suit and it is not therefore caught by the law of limitation under cap 22. She submitted that the cause of action in the proposed amended plaint has not changed.

Although the plaintiff’s counsel said that she was relying on certain cases, I could not trace them in the court file. The issue for determination by this court is whether the plaintiff’s proposed amendment to the plaint is time barred. Order 8 Rule 3 of the Civil Procedure Rules 2010 provides that a court may allow an amendment to pleadings at any stage of the proceedings and on such terms as to cost or otherwise as may be just.

An amendment can be allowed any time before judgment is entered. But rule 3 (2) of Order 8 is probably the most relevant rule in this matter. It is therefore necessary to reproduce it in this ruling as follows:

“(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.”

It is clear from that rule that there is no basis for the preliminary objection raised by the defendants. That rule provides that an amendment can be allowed even in instances where such amendment would admit a claim which is beyond the limitation period. The preliminary objection is without merit and is overruled and dismissed with costs to the plaintiff.

DATED and DELIVERED at MOMBASA this 7thday of December, 2011.

Mary Kasango

JUDGE