Lilian Waithera Gachuhi v David Shikuku Mzee [2018] KEELC 4091 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT ELDORET

E& L NO. 119 OF 2013

(Formerly Eldoret HCC No. 10 of 2003)

LILIAN WAITHERA GACHUHI……….  PLAINTIFF

VERSUS

DAVID SHIKUKU MZEE………………DEFENDANT

RULING

This ruling is in respect of an application dated 3rd November 2017 by the plaintiff/applicant for orders that:

1. The plaintiff be allowed to amend her plaint filed herein on 10th February2003 as per the draft amended plaint annexed hereto.

2. The draft amended plaint be deemed to be properly filed subject to payment of requisite court fees.

3. Costs of this application be provided for.

Counsel for the plaintiff/applicant argued the application and relied on grounds on the face of the application together with the supporting affidavit of the plaintiff. Counsel submitted that section 100 of the Civil Procedure Act and Order 8 rule 3 of the CPR gives the court inherent jurisdiction to allow amendment of proceedings before judgement.

Miss Cheso submitted that the  proposed amendment is for the inclusion of a prayer for general damages which is not a new cause of action as stated in the replying affidavit. Counsel defined a cause of action as per Black’s law dictionary as a ground which an action may be sustained. She submitted that general damages is a relief and that the cause of action is clear in the pleadings which is trespass.

It was counsel’s submission that the proposed amendment shall not prejudice the defendant as it does not grant the plaintiff automatic damages. That the plaintiff will be required to prove the allegations of trespass and the defendant shall have an opportunity during cross- examination and defence to rebut the same.

Miss Cheso also submitted that the replying affidavit does not disclose any prejudice that the defendant will suffer if the amendment is allowed. On the issue of delay, Counsel stated that the matter was slated for hearing on 25/10/17 but the said date was a holiday. She prayed that the application be allowed.

Mr. Momanyi Counsel for the defendant opposed the application and submitted that the cause of action arose in 2001, 16 years ago. It was Counsel’s submission that the plaintiff was aware of the facts that they seek to introduce in her plaint and that no reason has been given why they did not do so.

Counsel further submitted that the rules of amendment demands for the explanation for the inordinate delay which he says has not been done. Mr. Momanyi submitted that the claim is under tort and therefore is time barred. He further stated that the parties have filed their witness statements and lists of documents and allowing an amendment would mean going back to the drawing board. Counsel prayed that the application be dismissed as allowing it would delay the expeditious disposal of the matter.

In a rejoinder, Miss Cheso Counsel for the plaintiff submitted that the defendant is yet to comply with order 11. She prayed that the application be allowed.

Analysis and determination

This is an application for leave to amend a plaint. It is trite law that courts will normally allow amendment of pleadings at any stage of the proceedings if it can be done without causing prejudice or injustice to the other party.

Section 100 of the Civil Procedure Act and Order 8 rule 5 of the Civil Procedure Rules gives a general power to the court to amend pleadings. The Rule provides as follows:

5(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.

It should be noted that parties also have a right to amend their pleadings at any stage of the proceedings but this right is not absolute as it is dependent on the courts discretion. The courts discretion must be exercised judiciously. Section 100 and Order 8 rule 3 gives the court criteria to guide it on the exercise of the discretion on amendment as hereunder:

1. That the amendment should be necessary for purposes of determining the real question or issue which has been raised by parties;

2. That it is just to do so.

These principles were further enunciated in the Court of Appeal Case No. 222 of 1998, CENTRAL KENYA LTD as follows:

a. That are necessary for determining the real question in controversy.

b. To avoid multiplicity of suits provided there has been no undue delay;

c. Only where no new or inconsistent cause of action is introduced i.e. if the new cause of action does not arise out of the same facts of substantially the same facts as a cause of action.

d. That no vested interest or accrued legal rights is affected; and

e. So long as it does not occasion prejudice or injustice to the other side which cannot be properly compensated for costs

When determining an application for amendment of pleadings, you must have the above principles in mind to guide you. If the above questions are answered in the affirmative, then the court can safely allow an application for amendment in exercise of its discretion judiciously.  However, each case must be determined on its own merits. Further on the issue of discretion, Bullen Leak and Jacobs Precedents of Pleadings, 12th Edition at  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 is 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.”

Similarly, in the case of EASTERN BAKERYv. CASTELINO [1958] E.A. 461, Sir Kenneth O”Conner, President of the then Court of Appeal for Eastern Africa, said at p. 462

“It will be sufficient … to say that amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side and that there is no injustice if the other side can be compensated by costs.”

Coming back to the current application before me, it is evident on the record that this suit was filed in 2003 but was later transferred to the Environment and land Court in 2013. The court takes judicial notice of the fact that there was a backlog of land matters and dates were not easy to come by due to the station having only one Judge. This is not to explain away the delay in making the application for amendment of the plaint.  The proposed amendment is to include a relief for general damages for trespass which was already pleaded in the plaint by the plaintiff.

This amendment does not in any way introduce a new cause of action, therefore the submission that the suit would be time barred being founded on tort is not sustainable. The cause of action for trespass is intact and this will not prejudice the defendant in any way. The inclusion of the general damages does not automatically guarantee the plaintiff its award. It will be incumbent upon the plaintiff to prove trespass and once proven, the court still has the discretion to award general damages or not. Likewise, the defendant will have an opportunity to rebut the plaintiff’s allegations of trespass.

There will be no injustice or prejudice that the defendant will suffer if the amendment is allowed. This will help in the final deliberation of all issues and avoid multiplicity of suits. There is also no evidence on record that this application has been brought in bad faith. The respondent has also not demonstrated what injustice or prejudice he will suffer if the application for amendment of the plaint is allowed as stated by counsel for the plaintiff.

I also notice from the court record that the defendant had also been granted an opportunity to amend his defence. The plaintiff had complied with order 11 as was ordered by the court but the defendant has not yet complied.

The upshot is that I exercise my discretion and allow the plaintiff’s application to amend her plaint. The plaintiff to file a proper amended plaint within 14 days from the date of this ruling.  The defendant is also hereby granted 14 days leave to file an amended defence upon service of the amended plaint. Parties are at liberty to file amended witness statements if they so wish.

I order that each party to bear their own costs.

Dated and delivered at Eldoret on this 24th  day of January, 2018.

M.A ODENY

JUDGE

Ruling read in open court in the presence of Miss Cheso for the Plaintiff/Applicant and in the absence of Mr. Momanyi for Defendant/Respondent.

Mr. Koech: Court Assistant.