The application before me is dated 6th August 2024. The defendant seeks orders that he be allowed to amend defence and include a counter claim. The grounds of the application are that the Defendant is the registered owner of all that parcel of land know Dundori/Lanet Block 5/303 (Kiamunyeki). The Defendant acquired the suit land from his mother Susan Wairimu Ndiangui who was a shareholder of Nakuru Kiamunyeki Co. Ltd. The Defendant has been residing on the said parcel of land from 1978 to date and still holds a valid title deed to the said parcel of land. The Defendant herein now wishes to add a counter-claim to his defence seeking an order for cancellation of the title deed being held by the Plaintiff. The Defendant herein prays for leave to amend the defence and include a counter-claim and the proposed amendments will aid this Honourable Court in determining the real matters in controversy between the parties herein and so that the same are determined on their true and substantive merits.
This matter has a hearing date on the 2 of October 2024 and it is in the interest of justice that the Defendant be allowed to amend his defence before the said date. In light of the foregoing, it would serve the interest of justice to allow the Defendants/Applicants to amend the defence. The supporting affidavit reiterates the grounds of the application.
The plaintiff opposed the application and relied on the replying affidavit whose gist is that the amendment will change to character of the suit as the counter- claim intends to change the character of the suit. Moreover, that the suit property has been subject of the different suits that sought to cancel the title. One was dismissed for want of prosecution and the other was withdrawn. She states that the counter claim is res-judicata and even if it was not so, the claim is time barred. That the plaintiff, closed her case on 30th July 2024 and will be highly prejudicial. If an amendment is allowed after close of plaintiffs case.
The applicant submits that the dispute before the court revolves on the ownership of the suit property known Dundori/Lanet Block 5/303. The Defendant\'s position is that he is the rightful owner of suit property having been given the same by the mother who was a shareholder of Nakuru. Kiamunyeki Co Ltd. The Plaintiff\'s claim is similar in that they inherited the suit property from their late father. Defendant’s proposed amendment is for the cancellation of the title being held by the Plaintiff herein. According to the defendant, the Plaintiff’s right to a fair hearing and that of the Defendant will be enforced in that the parties herein will table their claims in court for this Honourable Court’s determination to finality.
The plaintiff respondent on his part submits that a cursory perusal of the Draft Amended Statement of Defence and Counterclaim reveals that the Defendant/Applicant intends introduce a new cause of action which is the cancellation of the Title Deed issued Plaintiff/Respondent herein.
The new amendments intend to change whole trajectory of the case and in furtherance; he has even altered the nature of reliefs sought. He relies on the holding of the court in the case of Eastern Bakery Castelino [1958] EA 461, wherein Sir Kenneth O’Connor, P sitting with Gould JA and Owen Corrie, Ag JA in the former Court of Appeal for Eastern Africa stated as follows;
“The general principle stated in this case is that an amendment should not be allowed if it causes injustice to the other side.”
According to the plaintiff, the Plaintiff/Applicant has brought the present application too late in the day after pleadings have already closed and the Plaintiff\'s/Respondent’s case has already been closed. The Applicant has had more than sufficient time to amend their Statement of Defence taking into consideration the fact that this is a case that was instituted in April 2023. The delay is inordinate and is just but another delaying tactic employed by the Defendant/Applicant and is only meant to drag this suit for a longer period than is necessary.
The respondent relies on the case of Kyalo vs. Bayusuf Brothers Ltd Civil Appeal No. 38 of 1983 cited with authority in the case of Ruambuzi Limited vs. Jaspal Singh Birdi & another (2007) KEHC 2776 (KLR), wherein the court held that applications for amendment of pleadings should only be allowed if they are brought within a reasonable time because to allow a late amendment would amount to an abuse of the court process. The legal parameters governing the amendment of pleadings are as follows:
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.
It should not prejudice or cause injustice to the other party.
The respondent further relies on Institute for Social Accountability & another vs. Parliament of Kenya & 3 others [2014] eKLR the court held:-
“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.”
I have considered the application, affidavit on record and rival submissions and do find that the main issue is whether the application has merit. .
The instant application has been brought under the provisions of Section 100 of the Civil Procedure Act, and Order 8 Rule 5 (1) of the Civil Procedure Rules.
Section 100 of the Civil Procedure Act 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.
Order 8 Rule 5 (1) of the Civil Procedure Rules provides that: -
“For the purpose of determining the real question in controversy between the parties, or correcting any defect or error in any proceedings, the Court may either on 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.”
It is evident that from the above provisions of the law, an amendment of pleadings may be permitted at any stage for purposes of determining the real question in controversy between the parties. The power of Courts to allow amendment is however discretionary and such discretion ought to be exercised judiciously.
It is a general principle in Law that an amendment should not be allowed if it causes injustice to the other side. In this case an amendment will cause great injustice to the respondent because he has closed his case. The applicant appears to be intended to steal a match from the respondent because he has waited until the respondent closed his case and then pulls a cat from the bag in the form of an amendment to introduce a new cause of action. Litigation is not a game of cards but requires utmost good faith. There is no explanation by the applicant why he has taken all that time from the close of pleadings issuance of directions and close of plaintiff’s case to file the application for amendment. I do find the application without merit and the same is dismissed with costs.
Ruling dated, signed and delivered electronically this 27th day of September 2024.
This matter has a hearing date on the 2 of October 2024 and it is in the interest of justice that the Defendant be allowed to amend his defence before the said date. In light of the foregoing, it would serve the interest of justice to allow the Defendants/Applicants to amend the defence. The supporting affidavit reiterates the grounds of the application.
The plaintiff opposed the application and relied on the replying affidavit whose gist is that the amendment will change to character of the suit as the counter- claim intends to change the character of the suit. Moreover, that the suit property has been subject of the different suits that sought to cancel the title. One was dismissed for want of prosecution and the other was withdrawn. She states that the counter claim is res-judicata and even if it was not so, the claim is time barred. That the plaintiff, closed her case on 30th July 2024 and will be highly prejudicial. If an amendment is allowed after close of plaintiffs case.
The applicant submits that the dispute before the court revolves on the ownership of the suit property known Dundori/Lanet Block 5/303. The Defendant\'s position is that he is the rightful owner of suit property having been given the same by the mother who was a shareholder of Nakuru. Kiamunyeki Co Ltd. The Plaintiff\'s claim is similar in that they inherited the suit property from their late father. Defendant’s proposed amendment is for the cancellation of the title being held by the Plaintiff herein. According to the defendant, the Plaintiff’s right to a fair hearing and that of the Defendant will be enforced in that the parties herein will table their claims in court for this Honourable Court’s determination to finality.
The plaintiff respondent on his part submits that a cursory perusal of the Draft Amended Statement of Defence and Counterclaim reveals that the Defendant/Applicant intends introduce a new cause of action which is the cancellation of the Title Deed issued Plaintiff/Respondent herein.
The new amendments intend to change whole trajectory of the case and in furtherance; he has even altered the nature of reliefs sought. He relies on the holding of the court in the case of Eastern Bakery Castelino [1958] EA 461, wherein Sir Kenneth O’Connor, P sitting with Gould JA and Owen Corrie, Ag JA in the former Court of Appeal for Eastern Africa stated as follows;
“The general principle stated in this case is that an amendment should not be allowed if it causes injustice to the other side.”
According to the plaintiff, the Plaintiff/Applicant has brought the present application too late in the day after pleadings have already closed and the Plaintiff\'s/Respondent’s case has already been closed. The Applicant has had more than sufficient time to amend their Statement of Defence taking into consideration the fact that this is a case that was instituted in April 2023. The delay is inordinate and is just but another delaying tactic employed by the Defendant/Applicant and is only meant to drag this suit for a longer period than is necessary.
The respondent relies on the case of Kyalo vs. Bayusuf Brothers Ltd Civil Appeal No. 38 of 1983 cited with authority in the case of Ruambuzi Limited vs. Jaspal Singh Birdi & another (2007) KEHC 2776 (KLR), wherein the court held that applications for amendment of pleadings should only be allowed if they are brought within a reasonable time because to allow a late amendment would amount to an abuse of the court process. The legal parameters governing the amendment of pleadings are as follows:
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.
It should not prejudice or cause injustice to the other party.
The respondent further relies on Institute for Social Accountability & another vs. Parliament of Kenya & 3 others [2014] eKLR the court held:-
“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.”
I have considered the application, affidavit on record and rival submissions and do find that the main issue is whether the application has merit. .
The instant application has been brought under the provisions of Section 100 of the Civil Procedure Act, and Order 8 Rule 5 (1) of the Civil Procedure Rules.
Section 100 of the Civil Procedure Act 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.
Order 8 Rule 5 (1) of the Civil Procedure Rules provides that: -
“For the purpose of determining the real question in controversy between the parties, or correcting any defect or error in any proceedings, the Court may either on 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.”
It is evident that from the above provisions of the law, an amendment of pleadings may be permitted at any stage for purposes of determining the real question in controversy between the parties. The power of Courts to allow amendment is however discretionary and such discretion ought to be exercised judiciously.
It is a general principle in Law that an amendment should not be allowed if it causes injustice to the other side. In this case an amendment will cause great injustice to the respondent because he has closed his case. The applicant appears to be intended to steal a match from the respondent because he has waited until the respondent closed his case and then pulls a cat from the bag in the form of an amendment to introduce a new cause of action. Litigation is not a game of cards but requires utmost good faith. There is no explanation by the applicant why he has taken all that time from the close of pleadings issuance of directions and close of plaintiff’s case to file the application for amendment. I do find the application without merit and the same is dismissed with costs.
Ruling dated, signed and delivered electronically this 27th day of September 2024.