1. For determination is the Plaintiff’s notice of motion dated 22/11/2023 filed pursuant to Order 8 Rule 3(1) (2)(4)(5) and Order 51 Rule 1 of the Civil Procedure Rules.
2. The Plaintiff sought the following orders:-
i. That the Defendant's amended statement of defense and counter- claim dated the 12th October, 2023, be struck off and dismissed for being bad in law as no leave was sought to enjoin the 1st Defendant to the suit.
ii. That the irregular addition of the 2nd Defendant, namely, Dezhou Jimnaoyuan Storage Limited Company, by the 1st Defendant be struck out from the suit.
iii. That this Honorable court be pleased to give further orders as it may deem fit.
iv. That the costs of this application be borne by the Defendants.
3. The grounds of the application were that although Order 8 Rule 3 of the Civil Procedure Rules permits amendment of pleadings at any stage, the amendment sought by the Defendant is without merit. The Plaintiff argued that the Defendant had already filed a defence and counterclaim on 6/2/2023, and now seeks to enjoin a co-defendant, and that a Plaintiff cannot be compelled to sue a party against whom they have no claim.
4. It was contended that the proposed co-defendant is the Plaintiff’s head company in China, is not registered in Kenya, and has no known office within the jurisdiction. The applicant asserted that this move is a delaying tactic by the Defendant, who had already admitted owing the Plaintiff money during mediation, but is unwilling to pay.
5. It was reiterated that the Plaintiff imported the coils through its parent company under a Strategic Cooperation Agreement dated 22/11/2021, paid all related charges, and delivered the goods to the Defendant’s premises. Despite this, both the original and amended defence and counterclaim seek reliefs solely against the Plaintiff, not the proposed party. The applicant thus opposed the inclusion of the new party and urged the court to strike out the amended defence and counterclaim dated 12/10/2023.
6. The Defendant opposed the application through a replying affidavit sworn on 19/7/2024 by Abdirizak Ahmed Abdukkahi.
7. The deponent, a director of the Defendant, stated that there was no contract between the Plaintiff and the Defendant, and that the Defendant entered into an agreement with Dezhou Jinmaoyuan Storage Limited Company on 22/11/2021.
8. He averred that the Defendant has a counterclaim against both the Plaintiff and Dezhou Jinmaoyuan Storage Limited, and denied allegations that the Defendant was attempting to compel the Plaintiff to sue any party. He further contended that the Plaintiff filed an amended plaint out of time without seeking leave of the court, and therefore lacks clean hands.
9. He asserted that the Plaintiff would not suffer prejudice from the Defendant's counterclaim against the party with whom it has a contract.
Analysis and determination
10. The Plaintiff filed written submissions dated 29/10/2024 in support of its application, while there are no submissions on record for the Defendant.
11. From the record, it is evident that the Plaintiff instituted this suit against the Defendant claiming that the parties entered into a contract to supply certain goods imported from its head company, known as Dezhou Jinmaoyuan Storage Limited Company in China.
12. It was the Plaintiff’s case that the goods were subsequently imported to the Plaintiff company and delivered to the Defendant; however, the Defendant defaulted in making payments, which led to the institution of this suit.
13. The Defendant filed a defence and counterclaim dated 6/2/2023, which was later amended on 12/10/2023. In the amended defence and counterclaim, the Defendant enjoined a new party to the suit, an entity known as Dezhou Junmaoyuan Storage Limited Company.
14. The Defendant asserted that it had entered into an agreement with the said company and not the Plaintiff herein. The Defendant stated that it has a counterclaim against the Plaintiff and the aforementioned company.
15. Order 1 Rule 10(2) of the Civil Procedure Rules states:-
“ The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”
16. Order 8 Rule 1 of the Civil Procedure Rules states:-
“A party may, without the leave of the court, amend any of his pleadings once at any time before the pleadings are closed.”
17. In this case, when the Defendant filed its amended defence and counterclaim, the pleadings had not yet closed. In any case, the Plaintiff also filed an amended plaint on 17/7/2023.
18. In its amended defence and counterclaim, the Defendant asserted that it entered into a contract with the Dezhou Junmaoyuan Storage Limited Company and not the Plaintiff. This fact is not denied by the Plaintiff herein.
19. The Plaintiff on its part stated that Dezhou Junmaoyuan Storage Limited Company is its parent company based in China and that it imported the subject matter goods through it.
20. Having looked at the pleadings, it is evident that the Defendant entered into a contract with Dezhou Junmaoyuan Storage Limited Company for the importation of goods. The said goods were delivered through the Plaintiff, which acted as the said company’s agent in Kenya.
21. As such, guided by Order 1 Rule 10(2) of the Civil Procedure Rules, I am of the view that Dezhou Junmaoyuan Storage Limited is a necessary party to these proceedings to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit.
22. In K. K. Lodgit Limited v Geminia Insurance Company Ltd & another (2021) eKLR, the court held that: -
“… it is clear that courts will readily grant leave to amend pleadings in order to determine the real issue(s) in dispute. The only caveat is that a proposed amendment should not cause prejudice or an injustice to the opposing party. Such prejudice or injustice must be one that cannot be compensated by an award of costs. Further, the Court will not permit an amendment that completely changes the nature of a party’s case.”
23. I find that the Plaintiff will suffer no prejudice by the addition to the suit of the said company. Accordingly, I therefore dismiss the subject application with costs granted to the Defendant.
24. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
24TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Ms. Mutua …………………for the Plaintiff/Respondents
Hussein…. ……………………..for Defendant/Applicants
2. The Plaintiff sought the following orders:-
i. That the Defendant's amended statement of defense and counter- claim dated the 12th October, 2023, be struck off and dismissed for being bad in law as no leave was sought to enjoin the 1st Defendant to the suit.
ii. That the irregular addition of the 2nd Defendant, namely, Dezhou Jimnaoyuan Storage Limited Company, by the 1st Defendant be struck out from the suit.
iii. That this Honorable court be pleased to give further orders as it may deem fit.
iv. That the costs of this application be borne by the Defendants.
3. The grounds of the application were that although Order 8 Rule 3 of the Civil Procedure Rules permits amendment of pleadings at any stage, the amendment sought by the Defendant is without merit. The Plaintiff argued that the Defendant had already filed a defence and counterclaim on 6/2/2023, and now seeks to enjoin a co-defendant, and that a Plaintiff cannot be compelled to sue a party against whom they have no claim.
4. It was contended that the proposed co-defendant is the Plaintiff’s head company in China, is not registered in Kenya, and has no known office within the jurisdiction. The applicant asserted that this move is a delaying tactic by the Defendant, who had already admitted owing the Plaintiff money during mediation, but is unwilling to pay.
5. It was reiterated that the Plaintiff imported the coils through its parent company under a Strategic Cooperation Agreement dated 22/11/2021, paid all related charges, and delivered the goods to the Defendant’s premises. Despite this, both the original and amended defence and counterclaim seek reliefs solely against the Plaintiff, not the proposed party. The applicant thus opposed the inclusion of the new party and urged the court to strike out the amended defence and counterclaim dated 12/10/2023.
6. The Defendant opposed the application through a replying affidavit sworn on 19/7/2024 by Abdirizak Ahmed Abdukkahi.
7. The deponent, a director of the Defendant, stated that there was no contract between the Plaintiff and the Defendant, and that the Defendant entered into an agreement with Dezhou Jinmaoyuan Storage Limited Company on 22/11/2021.
8. He averred that the Defendant has a counterclaim against both the Plaintiff and Dezhou Jinmaoyuan Storage Limited, and denied allegations that the Defendant was attempting to compel the Plaintiff to sue any party. He further contended that the Plaintiff filed an amended plaint out of time without seeking leave of the court, and therefore lacks clean hands.
9. He asserted that the Plaintiff would not suffer prejudice from the Defendant's counterclaim against the party with whom it has a contract.
Analysis and determination
10. The Plaintiff filed written submissions dated 29/10/2024 in support of its application, while there are no submissions on record for the Defendant.
11. From the record, it is evident that the Plaintiff instituted this suit against the Defendant claiming that the parties entered into a contract to supply certain goods imported from its head company, known as Dezhou Jinmaoyuan Storage Limited Company in China.
12. It was the Plaintiff’s case that the goods were subsequently imported to the Plaintiff company and delivered to the Defendant; however, the Defendant defaulted in making payments, which led to the institution of this suit.
13. The Defendant filed a defence and counterclaim dated 6/2/2023, which was later amended on 12/10/2023. In the amended defence and counterclaim, the Defendant enjoined a new party to the suit, an entity known as Dezhou Junmaoyuan Storage Limited Company.
14. The Defendant asserted that it had entered into an agreement with the said company and not the Plaintiff herein. The Defendant stated that it has a counterclaim against the Plaintiff and the aforementioned company.
15. Order 1 Rule 10(2) of the Civil Procedure Rules states:-
“ The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”
16. Order 8 Rule 1 of the Civil Procedure Rules states:-
“A party may, without the leave of the court, amend any of his pleadings once at any time before the pleadings are closed.”
17. In this case, when the Defendant filed its amended defence and counterclaim, the pleadings had not yet closed. In any case, the Plaintiff also filed an amended plaint on 17/7/2023.
18. In its amended defence and counterclaim, the Defendant asserted that it entered into a contract with the Dezhou Junmaoyuan Storage Limited Company and not the Plaintiff. This fact is not denied by the Plaintiff herein.
19. The Plaintiff on its part stated that Dezhou Junmaoyuan Storage Limited Company is its parent company based in China and that it imported the subject matter goods through it.
20. Having looked at the pleadings, it is evident that the Defendant entered into a contract with Dezhou Junmaoyuan Storage Limited Company for the importation of goods. The said goods were delivered through the Plaintiff, which acted as the said company’s agent in Kenya.
21. As such, guided by Order 1 Rule 10(2) of the Civil Procedure Rules, I am of the view that Dezhou Junmaoyuan Storage Limited is a necessary party to these proceedings to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit.
22. In K. K. Lodgit Limited v Geminia Insurance Company Ltd & another (2021) eKLR, the court held that: -
“… it is clear that courts will readily grant leave to amend pleadings in order to determine the real issue(s) in dispute. The only caveat is that a proposed amendment should not cause prejudice or an injustice to the opposing party. Such prejudice or injustice must be one that cannot be compensated by an award of costs. Further, the Court will not permit an amendment that completely changes the nature of a party’s case.”
23. I find that the Plaintiff will suffer no prejudice by the addition to the suit of the said company. Accordingly, I therefore dismiss the subject application with costs granted to the Defendant.
24. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
24TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the Presence of
Moses C/A
Ms. Mutua …………………for the Plaintiff/Respondents
Hussein…. ……………………..for Defendant/Applicants