Gitonga v Kimeria [2022] KEHC 16995 (KLR)

Gitonga v Kimeria (Civil Suit 7 of 2018) [2022] KEHC 16995 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16995 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Suit 7 of 2018

GWN Macharia, J

December 15, 2022

Between

Simon Wahome Gitonga

Plaintiff

and

Eliud Waititu Kimeria

Defendant

Ruling

1. The application for consideration is the plaintiff/applicant’s notice of motion dated the May 19, 2021 brought under sections 1A and 1B of the Civil Procedure Act and Order 8 Rule 3 & Order 51 Rule 1 of theCivil Procedure Rulesseeking that:a.This court be pleased to grant leave to the plaintiff/applicant to amend the plaint dated April 4, 2018. b.The annexed draft amended plaint be duly filed upon payment of the requisite fees.c.The costs of the application be in the main cause.

2. The application is based on the grounds on the face of it and supported by the affidavit sworn on May 19, 2021 and a supplementary affidavit sworn on March 22, 2022 by Simon Wahome Gitonga, the applicant herein.

3. The defendant/respondent opposed the application videa replying affidavit sworn on the January 18, 2022 by himself in which he vehemently opposed the application.

4. Directions were taken that the parties canvass the application by way of written submissions. The applicant’s submissions are dated March 1, 2022 whilst those of the respondent were filed on January 31, 2022. I have considered them in the summary of each party’s case.

The Plaintiff’s/Applicant’s Case 5. The applicant averred that he entered into an agreement for purchase of 40% stake in the business enterprise under the name and style of South Lake Junction Rocky Resort Limited erected on land parcel Naivasha/maraigushu Block/18/830. Pursuant to the said purchase, he was to join the business on the January 1, 2018 as the Managing Director.

6. The Applicant would soon learn that the records at the office of the Registrar of Companies did not have him as a director 2, contrary to the purchase agreement. He concluded that he was conned to the tune of Ksh 20,000,000/= in the believe that he would be made a director of the company. That the respondent has never had an intention to include him as a director of the company. That the intended amendment to the Plaint is for purposes of reflecting the new development.

7. It was the Applicant’s case that a prayer for amendment of pleadings can be freely allowed any time before delivery of judgment. He relied on the case of Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013] eKLRand Nyamodi Ochieng Nyamogo & another v Kenya Posts & Telecommunications Corporation [1994] eKLR in support of the application.

8. The applicant submitted that the amendments were necessary so as to enable the court discern the real issues to be determined between the parties. His position is that the prayers in the original plaint had, with time been overtaken by events as the plaintiff was neither accorded control nor registered as a director as per the terms of the purchase agreement. That the original plaint thus would not concisely bring out the issues in controversy between the Plaintiff and the defendant for determination by the court.

9. It was further submitted by the applicant that the issues raised in the draft amended plaint arose from the same facts and/or cause of action thus they are not substantially different in character. That, furthermore, the application was made without undue delay and no prejudice would to be suffered by the respondent in the event that the court allows the amendment.

The Respondent’s Case. 10. The respondent opposed the application on grounds that the applicant, pursuant to a consent, had taken up his responsibilities in the said company and seeking a refund of any monies would be making a move to benefit twice.

11. It was the respondent’s case that the said amendments which the applicant is seeking would introduce an entirely different cause of action. It is his position that allowing the application would cause him prejudice that cannot be remedied by way of costs and, in any case, the application is brought in bad faith. He relied on the case of Ma Shwe Mya v Maung Po Hnaung (1921), 48 IA 214, 48 Cal.832 to buttress the submission.

Analysis and determination 12. I have carefully considered application and the respective affidavits in support of the same, the replying affidavit in response thereto, and the respective rival submissions. The only issue for determination is whether the application is merited.

13. It is a general rule that amendments before hearing of a suit ought to be freely allowed if they do not occasion an injustice to the other party. Further, even if any injustice would be occasioned, the same should be compensable by way of costs.

14. Order 8 rule 3 of the Civil Procedure Rules provides for amendment of pleadings with leave of court as follows: -“(1) Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.”

15. Further, Order 8, rule 5 gives the court the general power to amend.“(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.”

16. In Institute For Social Accountability & Another v Parliament of Kenya & 3 others [2014] eKLR, the court held:-“The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings….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.”

17. The Court of Appeal outlined the principles in amendment of pleadings in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013]eKLR as follows: -“The law on amendment of pleading in terms of section 100 of the Civil Procedure Act and Order VIA rule 3 of the repealed Civil Procedure Rules under which the application was brought was summarized by this Court, quoting fromBullen and Leake & Jacob’s Precedents of Pleading - 12th Edition, in the case of Joseph Ochieng & 2 others v First National Bank of Chicago, Civil Appeal No149 of 1991 as follows:-“The ratio that emerges out of what was quoted from the said book is that powers of the court to allow amendment is to determine the true, substantive merits of the case; amendments should be timeously applied for; power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages); 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; that the proposed amendment must not be immaterial or useless or merely technical; that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action; that 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 Limitation Acts.”

18. The above principles on amendments were summarized by the Court of Appeal in the case of Ochieng and Others v First National Bank of Chicago Civil Appeal Number 147 of 1991 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.

19. Flowing from the above, the legal parameters governing the amendment of pleadings can be surmised as follows; that 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 and it should not prejudice or cause injustice to the other party.

20. It is the applicant’s claim that pursuant to the purchase agreement, he was to be made a director and he was to be in charge of the operations of the restaurant section of the enterprise. In his initial Plaint, he sought specific performance and subsequently a consent was recorded. However, he was not registered as a director as agreed between him and the Respondent.

21. The applicant further intimated that his position has been ceremonial with the respondent being in control of the vital aspects of the business which he (Applicant) ought to have been in charge of. It was on the foregoing basis that he seeks to amend his Plaint so as to include prayers for refund of the purchase price of the stake in the enterprise. This intended amendment is not in vain as it intends to reflect the true position of the applicant’s claim in the business. It shall indeed aid the court to resolve the real issues in controversy between the parties; it is merited.

22. On the issue of delay, the applicant has demonstrated that he had written to the Registrar of Companies vide a letter dated the April 5, 2021 seeking confirmation of whether a CR12 supplied to him emanated from the Registrar’s office. The said letter was responded to on the May 11, 2021 and it disputed the contents of the said CR12 and further indicated that the respondent was the only registered director of South Lake Junction Rocky Resort Limited.

23. The applicant thereafter moved fast to file the instant application on the May 24, 2021. The respondent, on the other hand, contends that the there was an inordinate delay to institute the application. I then grapple with the question of whether indeed there was indolence on the part of the applicant in moving the court herein.

24. Indeed, there is no definition as to what amounts to an inordinate delay; the practice has been that the same is gauged on a case to case basis. In the case of Utalii Transport Company Limited & 3 Others v NIC Bank Limited & Anor[2014] eKLR the court held that:“Whereas there is no precise measure of what amounts to inordinate delay and whereas what amounts to inordinate delay will differ from case to case depending on the circumstances of each case; the subject matter of the case; the nature of the case; the explanation given for the delay; and so, on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that it is inordinate and therefore, inexcusable. On applying court’s mind on the delay, caution is advised for courts not to take the word ‘inordinate’ in its dictionary meaning, but in the sense of excessive as compared to normality.”

25. Having considered the duration between the time the Applicant received the response from the Registrar of Companies and filed the instant application, which was only 13 days, it is my view that there was no inordinate delay. To the contrary, the applicant moved with speed to seek this court’s intervention.

26. All factors considered, I am of the view that the intended amendments seek to serve the greater interest of justice. In order to have the suit heard on merit, it is only fair to have the application allowed. The respondent has failed to demonstrate how the prejudice, if any, caused by the said amendments would be averse to him or cannot be compensated by way of by of costs.

Disposition 27. In the upshot, I allow the application with the following orders:a.That the applicant be and is hereby granted leave to amend his plaint in terms of the draft amended plaint annexed to its application.b.That the draft amended plaint be and is hereby deemed as duly filed and the same be served upon payment of requisite court fees within 7 days of this ruling.c.Upon service, the respondent be and is hereby at liberty to file and serve an amended defence within 14 days.d.The applicant to file and serve a reply to the amended defence within 7 days of service.e.The cost of this motion to abide the outcome of the main suit.

28. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 15TH DAY OF DECEMBER, 2022. G.W.NGENYE-MACHARIAJUDGEIn the presence of:1. Ms. Karanja for the Plaintiff/Applicant-absent duly notified online.2. Mr.Ngunjiri for the Defendant/Respondent.