D M M v R M M [2017] KEHC 3072 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT VOI

CIVIL APPEAL NO 14 OF 2016

D M M………….………….……………..APPLICANT

VERSUS

R M M…..…………………….......…...RESPONDENT

RULING

INTRODUCTION

1. The Applicant had been committed to civil jail for five and a half (5 ½) months pursuant to committal orders that were granted in PMCC No 19 of 2012 Taveta for failing to remit to the Respondent herein monies for maintenance of a minor namely, G M. On 6th July 2016, he filed a Petition of Appeal seeking to have the orders of the trial court set aside.  As he had been sentenced to a short period, this court released him upon executing a personal bond in the sum of Kshs 2,000/= with a view to hearing and determining his Petition of Appeal.

2. As there was a question of paternity of the said child, parties agreed to submit themselves for a DNA test at the Government Chemist Mombasa. The results revealed that the Applicant herein was the father of the child. Although this court prevailed upon the parties to explore possibilities of an out of court settlement relating to the payment of maintenance of the said child. Unfortunately, they were unable to do so.

3. The court therefore directed that the Applicant file a formal application seeking leave to amend his Petition of Appeal as the Respondent objected to him amending his said Petition of Appeal. In his Notice of Motion application dated 30th March 2017 and filed on 3rd April 2017, he sought the following orders:-

1. THAT this Honourable Court be pleased to grant the Applicant leave to amend the Petition of Appeal.

2. THAT the costs of and incidental to this application do abide the results of the intended appeal.

LEGAL ANALYSIS

4. The Applicant referred this court to Order 42 Rule 3 of the Civil Procedure Rules, 2010 which gives a court discretion to allow an applicant to amend his or her Memorandum of Appeal and that there was no time limit within which such an application can be made. It relied on the cases of Pioneer Holdings Limited vs P. Karanja & Another [2007] eKLR, Central Kenya Limited vs Trust Bank Limited & 5 Others [2000] eKLRand Elijah Kipngeno Arap Bii vs Kenya Commercial Bank Limited [2013] eKLR  where the common thread was that amendments ought to be allowed if they do not cause prejudice to the opposing party with a view to determining the real question at issue.

5. In her Replying Affidavit, the Respondent contended that the Applicant was able to pay Kshs 3,000/= every month for the maintenance of the child. She therefore urged this court to dismiss the said application and he be ordered to pay the accrued monies. She reiterated the same issue in her Written Submissions.

6. Order 42 Rule 3 of the Civil Procedure Rules provides as follows:-

1. The appellant may amend his memorandum of appeal without leave at any time before the court gives directions under rule 13

2. After the time limited by subrule (1) the court may, on application, permit the appellant to amend his memorandum of appeal.

7. It is trite law that a party must be given a fair and reasonable opportunity to present its case. This includes the right to present its case in whatever form it deems fit. Indeed, the court must therefore be very cautious while denying a party an opportunity to ventilate its case sought to be achieved through amendment of pleadings. A court should only deny a party leave to amend its pleadings as a last resort and with good or sufficient cause. This is where the other party will suffer great prejudice which cannot be compensated by way of costs or otherwise as may be just.

8. This is a position that has been well laid out in several cases. In addition to the cases the Applicant referred this court to, this court also had due regard to the case of Joseph Ochieng & 2 others t/a Aquiline Agencies vs First National Bank of Chicago Civil Appeal No 149 of 1991cited in David Jonathan Grantham & Another vs National Social Security Fund, Shah J.A. (as he then was) stated thus:-

“…amendments should be timeously applied for…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…”

9. The court also entirely agreed with the holding in the case of Eastern Bakery vs Castelino [1958] 1 EA 461 that applications for amendments ought to be freely allowed if they can be made without injustice to the other side and if the injustice to that side can be compensated by way of costs.

10. Appreciably, this court had not given directions as envisaged in Order 42 Rule 3 of the Civil Procedure Rules as it is yet to receive the file from the Trial Court and thus gives directions on the hearing of the Applicant’s Appeal. In any event, he had a right under Article 50 of the Constitution of Kenya, 2010 to have access to the court to ventilate its case.

11. Accordingly, having considered the pleadings and the written submissions and case law that were relied upon by the parties herein, this court came to the firm conclusion that the Respondent had not demonstrated that she would suffer any prejudice that cannot be compensated by way of costs if it allowed the orders that had been sought by the Applicant herein.

12. On the other hand, the court finds that it would be the Applicant that would be prejudiced if its application was not allowed as he would have been denied an opportunity to fully ventilate his case. The question of whether or not his Appeal was merited was a different case altogether. It did appear to this court that the Respondent appeared to have addressed the merits of his Appeal at this juncture which was premature.

DISPOSITION

13. Accordingly, the upshot of this court’s ruling was that the Applicant’s Notice of Motion application dated 30th March 2017 which was filed on 3rd April 2017 following the Respondent’s objections to him amending his Memorandum of Appeal and which was really not necessary as this court had not given its directions under Order 42 Rule 3 of the Civil Procedure Rules, this court nonetheless hereby allows the said application as sought in Prayer No (1) therein with a view to making a determination on the question as to whether or not he could file an Amended Memorandum of Appeal.

14. In this regard, the Applicant is hereby directed to file and serve his Amended Memorandum of Appeal within fourteen (14) days from the date of this Ruling. Costs shall be in the cause.

15. It is so ordered.

DATED and DELIVERED at VOI this 10thday of October 2017

J. KAMAU

JUDGE