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Court of AppealPartially AllowedCivil Appeal No. 2 of 2002· [2008] KECA 53 (KLR)

James Ochieng’ Oduol T/A Ochieng Oduol & Co. Advocates v Richard Kuloba [2008] KECA 53 (KLR)

Court of Appeal of Kenya
21 November 2008
SBS.E.O. BosireEOE.O. O’KubasuJAJ. Aluoch
1,599 words in judgment
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The bottom line

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Kenya's Court of Appeal barred a late amendment to a defamation suit because it would have defeated a limitation defence that had already accrued.

What this practically means

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Executive summary

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The respondent, then a serving Judge of the High Court, sued the appellant advocate for libel over an affidavit drafted on his client’s behalf alleging the respondent had received a Kshs.5 million bribe. The plaint alleged publication of the affidavit to the media, but after the appellant filed a defence denying publication and pleading limitation, the respondent sought leave to amend the plaint to plead republication. Visram, J. granted leave in a ruling dated 27th November 2001, holding that the court’s jurisdiction was wide and that an amendment introducing a cause of action outside the limitation period was permissible under Order VIA rule 3, without prejudice compensable by costs. The Court of Appeal (Bosire, O’Kubasu and Aluoche, JJ.A) allowed the appeal. Applying Mbogo v Shah, it held the judge’s discretion had been exercised on wrong principles: the amendment sought to aid a negligent pleader who had known of the republication facts from the outset but failed to plead them, and its effect was to defeat an accrued limitation defence. Such amendments are permissible only in exceptional and peculiar circumstances, which were lacking. The Court set aside the order allowing amendment, dismissed the respondent’s application for leave to amend, and awarded the appellant costs of both the appeal and the application, to abide the outcome of the underlying suit.

Key legal issues

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01

Whether the discretionary power to amend pleadings under Order VIA rule 5(1) extends to allowing an amendment that introduces a new cause of action outside the limitation period

Holding

The power is discretionary and wide, but circumscribed; amendments which would defeat an accrued limitation defence are permissible only in exceptional and peculiar circumstances, absent here.

Reasoning

The court accepted that trial courts have power to amend plaints disclosing no cause of action and may in special circumstances allow amendments notwithstanding a limitation defence. However, the amendment here introduced republication facts known to the respondent from the outset but not pleaded until a defence was filed, effectively aiding a negligent pleader and defeating an accrued defence. No peculiar circumstances existed, so the judge’s discretion miscarried.

p. 3
02

Whether the High Court judge applied correct principles in exercising his discretion

Holding

He erred by failing to appreciate that a plaintiff reacting to a defence should not readily be allowed amendments that defeat that defence.

Reasoning

Applying the Mbogo v Shah principles, the appellate court found the judge failed to take into account the relevant consideration that particulars supplied in response to a defence cannot be used to smuggle in a new cause of action after limitation has expired. That misdirection justified interference with the discretionary ruling below.

p. 3

Legal principles established

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  • Amendments to a plaint that would defeat an accrued limitation defence may only be allowed in exceptional and peculiar circumstances
  • The power to allow amendment under Order VIA rule 5(1) is not intended to aid a negligent pleader
  • Where a plaintiff is reacting to a defence raised, the court should be slow to allow amendments that have the effect of defeating that defence
  • An appellate court will not interfere with a trial judge’s exercise of discretion unless the judge misdirected himself, misapprehended the law, acted on no evidence, or was plainly wrong

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the High Court allowing amendment of the plaint set aside
  3. 3.Respondent’s application for leave to amend the plaint dated 4th January, 2000 dismissed
  4. 4.Costs of the appeal and of the application awarded to the appellant, to abide the outcome of the respondent’s suit in the High Court

Authorities

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Legislation

  • Civil Procedure RulesOrder VIA rule 5(1)
  • Civil Procedure RulesOrder VIA rule 3
  • Civil Procedure RulesOrder VIA rule 8
  • Civil Procedure RulesOrder VI rule 8(b)
  • Limitation Act, Cap 22 (Laws of Kenya)Section 4(2)

Cases cited (3)

  • Mbogo & Another vs. Shah
    [1968] E A 93
  • MOTOKOV V. AUTO GARAGE LTD. AND ANOTHER
    [1971] EA 353
  • BARCLAYS BANK D.C.O. VS. SHAMSUDIN
    [1973] E.A. 451
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1 of 2000
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Act from an interlocutory ruling of the High Court (no specific constitutional provision cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "James Ochieng’ Oduol T/A Ochieng Oduol & Co. Advocates v Richard Kuloba [2008] KECA 53 (KLR)", Case Analysis (2008). Civil Appeal No. 2 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/53/eng@2008-11-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.