FRANCIS FRAZIER OCHAMI VS NATIONAL BANK OF KENYA LIMITED AND KEYSIAN AUCTIONEERS

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CIVIL SUIT  NO 6  OF 2020

FRANCIS FRAZIER OCHAMI ………………………...............PLAINTIFF/APPLICANT

JOAN NETONDO WAMOYA……………………..…………..PROPOSED 2^ND PLAINTIFF

VERSUS

NATIONAL BANK OF KENYA LIMITED .................1^ST DEFENDANT/RESPONDENT

KEYSIAN AUCTIONEERS…………………….……..2^ND DEFENDANT/RESPONDENT

AND

KENNETH ODIWUOR OCHIENG………...……PROPOSED 1^ST INTERESTED PARTY

VIVIAN NEREA ATAKOS…………………..…….PROPOSED 2^ND INTERESTED PARTY

RULING

The Application

1. The Applicant has moved this Court through a Notice of Motion dated 15^th February, 2023   (the Application) anchored under Section 1A, 1B and 3A of the Civil Procedure Act, Order 1 Rule 10 and Order 8 Rule 3 of the Civil Procedure Rules, seeking the following orders:
2. Spent.
3. That this Honourable Court be pleased to grant leave to the Plaintiff/Applicant herein to further amend the Amended Plaint dated 7^th July, 2022.
4. That this Honourable Court be pleased to grant leave to the Plaintiff/Applicant to join in this suit, Joan Netondo Wamoyo, Kenneth Odiwuor Ochieng and Vivian Nerea Atakos as the 2^nd Plaintiff, 1^st and 2^nd Interested Parties respectively. 
5. That this Honourable Court be pleased to consider the annexed further amended Plaint dated the 15^th February, 2023 as duly filed upon payment of the requisite fees.
6. That costs of this application be provided for.
7.  The application is premised on the grounds listed on the face of it and the Supporting Affidavit of the Applicant in which he has stated that he filed a Plaint dated 10^th February, 2020 seeking a declaration that the intended sale of the suit property was illegal null and void, and a permanent injunction against the Defendants, among other prayers; that the Defendants proceeded with the sale by public auction rendering some prayers superfluous, hence the need for amendment of the Plaint; that he sought an amendment which this Court allowed since it was not unopposed and that the 1^st Defendant had no right or legal basis to exercise any statutory power of sale over the suit property as there was no validly registered charge.
8. He further averred that the 1^st defendant never issued any notice of intention to sell the property to his spouse despite having obtained her consent to charge the property; that the amount being demanded offends the in -duplum rule as provided under section 44A of the banking Act and that in the interest of justice he should be allowed to further amend his plaint dated 7^th July, 2022. He stated that he has not raised any new issues in the proposed amendments; that the proposed interested parties are the purchasers of the suit property through public auction and there is need to enjoin them so as to protect their interest and that the application has been brought without any delay and no prejudice will be occasioned to the Respondents. 
9. The Application is opposed by the Defendants through the Grounds of Opposition dated 14^th April, 2023 to the effect that the application is premised on falsehood and untruths as the Plaintiff’s application for interlocutory injunction dated 10/02/2020 was dismissed on 27/11/2020; that the said dismissal having been delivered, the Defendants were lawfully entitled to proceed with the sale of the material property which they did; that the alleged Further Amended Plaint introduces the same issues raised in the Plaintiff’s Notice of Motion dated 10/2/2020 which was dismissed on 27/11/2020; that the draft Further Amended Plaint introduces matters of evidence in violation of the Rules of pleadings; that the intended Interested parties are innocent purchasers for value and no liability can attach to them making their joinder misplaced; that the Notice of Motion indicates two Interested Parties sought to be enjoined but the body of the application has three parties it seeks to enjoin; that the intended further Amended Plaint obfuscates the issues in dispute and will undermine determination of the real questions in dispute and that the amendm sought is an abuse of the court process.

Plaintiff’s submissions

1. The Application proceeded by way of written submissions. The Plaintiff/Applicant filed submissions dated 7^th February, 2024. He has submitted that the application has merit; that the amendments ought to be freely allowed at any stage of the suit so long as no new distinct cause of action which cannot be supported by the prevailing facts is introduced and/or opposing party will not suffer any prejudice that cannot be compensated by way of damages. The Applicant relied on Inter Tropical Timber Trading Limited -vs- Kenya Power and Lighting Company Ltd [2021] eKLR where it was held that:

“In ascertaining the requirements for exercising the discretion to grant or refuse  amendment of pleadings, I borrow from the decision in the case of Daniel  Ngetich & Anor V K-Rep Bank Limited [2013] eKLR where it was stated  that:

“…Normally the court should be liberal in granting leave to amend a  pleading. But it must never grant leave for amendment if the court is of the  opinion that the amendment would cause injustice or irreparable loss to the other  side or if it is a device to abuse the process of the court. The power to allow  amendments is intended to do justice; for, all amendments ought to be allowed  which (a) do not work injustice to the other side, and (b) are necessary for the  purpose of determining the real question in controversy between the parties; and  all the authorities lay down precisely the same doctrine, that amendment should  be refused only where the other party cannot be placed in the same position as if  the pleading had been originally correct, but the amendment would cause him an  injury which could not be compensated in costs.

1. It was submitted that the aforementioned case the court went further to rely on principles outlined by the Court of Appeal as follows:

“The foregoing position speaks the same language as in the case of Ochieng &  Others v First National Bank of Chicago Civil Appeal No. 147 of  1991 (unreported) as cited with approval in St Patrick’s Hill School Ltd v Bank  of Africa Kenya Ltd [2018] eKLR in which the Court of Appeal set 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 and  amendment notwithstanding the expiry of current period of limitation.”

1. The Applicant submitted, on the issue of enjoining the intended interested parties, that any party reasonably affected by the pending litigation is a necessary and proper party and should be enjoined. The Applicant relied on the case of Gladys Nduku Nthuki – vs- Letshego Kenya Limited; Mueni Chales Maingi (intended Plaintiff)[2022]eKLR.
2. He argued that contrary to the averments of the Respondents no new cause of action is sought to be introduced or foreign to the underlying facts. They argued that the matter has not been set down for hearing and there is certainly no prejudice that the Defendants will suffer that cannot be compensated by an award of costs.
3. The Respondents’ submissions are not in the court file nor are they in the Court Tracking System (CTS).

Determination

1.  Having read the Application, the affidavits and the submissions together with the authorities relied on, one issue presents itself for determination: whether the Applicant’s Application has merit.
2. I have read the court file. I have noted that this is not the first amendment of the Plaint by the Applicant. On 21^st June 2022, counsel for the Plaintiff informed the Court that the Plaintiff wished to amend the Plaint because some prayers sought in the original Plaint had been overtaken by events following selling of the suit property. Counsel for the Defendant opposed the oral application. This Court directed the Plaintiff to file a formal application.
3. On 4^th October 2022, the Court was informed that the Application seeking to amend the Plaint had been filed and served on the counsel for the Defendant. The Court noted that the said application was not in the Court file and directed the Plaintiff to place it in the Court file. Given that the application was not opposed and that service to the Defendant had been acknowledged, this Court allowed the Application the Plaintiff to amend the Plaint.
4. I have not found that Amended Plaint in the Court file or in the Court Tracking System. I am not able to know what amendments were done in that amended Plaint. The Court went further to direct the Defendant to file an amended defence to the Amended Plaint. I have not seen that Amended Defence in the Court file or the CTS.
5. Amendments of pleadings are governed by Order 8 Rule 5 of the Civil Procedure Rules on amendment of pleadings provides that:

(1) 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.

(2) This rule shall not have effect in relation to a judgment or order.”

1. The power of the Court to allow or refuse a party to amend pleadings is discretionary as was held in the case of Andrew Wabuyele Biketi vs. Chinese Centre for The Promotion of Investment Development & Trade in Kenya Limited & 2 Others [2015] eKLR, where the court in disallowing an application for amendment stated as follows:

“…the court has discretion to order amendment at any stage before judgment.  And amendment should be freely allowed provided it is not done mala fide, and  does not occasion prejudice or injustice to the other party which cannot be  compensated by award of costs”.

1. In the same vein, the discretionary power of the court in granting or refusing an application for amendment of pleadings should be exercised judicially and in consideration of the facts of the case in particular. The Court in Bosire Ogero v Royal Media Services [2015] eKLR, held:

“In Bullen Leak and Jacobs Precedents of Pleadings, 12th Edition page 127  titled “amendment with leave –time to amend “ it is stated that the power to  grant  or refuse  leave to amend  a pleading is discretionary and it to be exercised  so as to do what justice may require in the particular case, as to costs or  otherwise.  The power may be exercised at any stage of the proceedings and  accordingly amendment may be allowed before or at the trial or after trial or even  after judgment or an appeal.  As a general rule, however, the amendment is  sought to be made, it should be allowed if it is made in good faith and if it will  not do the opposite party any harm, injury or prejudice him in some way that  cannot be compensated by costs or otherwise”

1. While this Court is alive to the above provisions and authorities, it is my view that failure by the Plaintiff to avail to the Court the earlier amended plaint is harmful to his case. By the time this Court allowed the Plaintiff to amend the Plaint on 21^st June 2022, circumstances had changed in that the suit property had already been sold. The Plaintiff therefore was better placed to amend his Plaint and include whatever reliefs he wished to include. I have carefully read the Further Amended Plaint. I have noted that some of the issues raised are better left to the evidence to be adduced. I have also noted that safe for introducing the intended interested parties as the purchasers of the suit property, there is nothing said about them in regard to why they should be included as interested parties.
2. I have also read the Ruling delivered on 27^th November 2020. The Plaintiff had sought various orders the main order being temporary injunction against the Defendants to restrain them from selling, transferring or dealing in any manner with the suit property pending the hearing and determination of the suit. The Court (Mwita, J) found that the Applicant has demonstrated a prima facie case in that there was an issue touching on the interest rates that the Court should determine but that the Applicant had failed to demonstrate he would suffer irreparable damage that could not be compensated by way of damages or that the balance of convenience tilts in his favour.
3. I agree with the Defendants that the issues being raised in the Further Amended Plaint are the same issues contained in the Application giving rise to the Ruling delivered on 27^th November 2020 and that the Defendants were lawfully entitled to proceed with the sale of the suit property after that Ruling,
4. Given the failure by the Plaintiff to avail to the first amended plaint and the reasoning in this Ruling, it is my finding that the Plaintiff is abusing the process of this court. The amendments sought include evidence that the Plaintiff will have the opportunity to present during the hearing of this case.
5. Consequently, this application fails and is hereby dismissed with costs to the Defendants. Orders shall issue accordingly.

Dated, signed and delivered 21^st February 2025.

S. N. MUTUKU

JUDGE

In the presence of:

1. Ms Anyango holding brief for Mr. Kipkorir for the Defendant/Respondent

2. Mr. Bulowa holding brief for Khaemba for the Plaintiff/Applicant