Henry Oryem Okello v Sukhdev Singh Laly & another [2015] KEELC 265 (KLR)

High Court of Kenya

23 July 2015

JMJ. M. Mutungi

3,041 words in judgment

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The bottom line

The High Court refused a defendant's late attempt to rewrite his defence after nine years, showing Kenyan courts punish delay and unfaithful pleading.

What this practically means

Executive summary

This is a ruling by J. M. Mutungi, J on the 1st Defendant's Notice of Motion dated 10th July 2014, brought under Order 8 Rules 3(1)(2)&(5) of the Civil Procedure Rules 2010 and Sections 3A and 100 of the Civil Procedure Act, seeking leave to amend his defence to include a draft amended defence and counterclaim. The plaintiff opposed, arguing that the proposed counterclaim rested on an alleged tenancy agreement between the 1st and 2nd Defendants to which the plaintiff was not a party, that it introduced new causes of action that would cloud the issues, and that the application was a further stratagem to delay the suit, which had been pending since 15th February 2006 and had been repeatedly frustrated by defendants' applications. The court held that it has a wide and unfettered discretion to allow amendments, but only where no injustice or miscarriage of justice would result. Applying that principle, the judge found the proposed counterclaim introduced separate causes of action arising from the 1st Defendant's alleged tenancy of the 2nd Defendant and from distress levied by the 2nd Defendant, which could not attach to the plaintiff. The judge also found the applicant had not acted bonafide, having withheld his tenancy claim since his 2006 defence, and that his delay of over nine years was inexcusable, particularly given a similar 2011 application he had withdrawn. The application dated 10th July 2014 was dismissed with costs to the plaintiff.

Key legal issues

Whether leave to amend the defence to introduce a counterclaim should be granted

Holding

The application was dismissed: the proposed counterclaim introduced new and separate causes of action with no nexus to the plaintiff, would radically change the character of the suit, was brought after inexcusable delay of over nine years, and was not made bonafide.

Reasoning

The 1st Defendant knew at the time of filing his 2006 defence that he claimed to be a tenant of the 2nd Defendant but failed to disclose it. The counterclaim claims (repairs of Kshs.4 million and damages of Kshs.6 million from eviction) arise from the tenancy with the 2nd Defendant and the distress levied by the 2nd Defendant, and can only attach to the 2nd Defendant. Delay was inexcusable given a similar withdrawn 2011 application; allowing the amendment would occasion injustice to the plaintiff eager for hearing.

Legal principles established

The court has a wide and unfettered discretion to grant leave for amendment of pleadings, but leave should generally be granted only where the amendment would not occasion injustice or a miscarriage of justice
Parties ought to make applications for amendment of their pleadings at the earliest opportunity and without delay
A counterclaim founded on a tenancy agreement between the defendant and a third party cannot attach to the plaintiff who was not a party to that agreement and introduces a separate cause of action more suited to a separate action

Court orders

1.The 1st Defendant's application dated 10th July 2014 for leave to amend his defence was dismissed
2.Costs of the application were awarded to the plaintiff

Authorities

Legislation

Civil Procedure Rules 2010Order 8 Rules 3(1)(2)&(5)
Civil Procedure Act Cap 21 Laws of KenyaSections 3A and 100
Civil Procedure Rules 2010Order 11

Cases cited (2)

Joseph Ochieng & 2 others -vs- First National Bank of Chicago
Civil Appeal No. 149 of 1991 (unreported)
Ketteman -vs- Hansel Properties Ltd
(1988) 1 ALL ER 38

Jurisdiction invoked: Order 8 Rules 3(1)(2)&(5) of the Civil Procedure Rules 2010 and Sections 3A & 100 of the Civil Procedure Act Cap 21 Laws of Kenya

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Henry Oryem Okello v Sukhdev Singh Laly & another [2015] KEELC 265 (KLR)", Case Analysis (2015). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/265/eng@2015-07-23

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