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ELCAllowedNot stated in the judgment (application dated 5th November, 2015 in a suit filed 30th November, 2007)· [2016] KEELC 678 (KLR)

Barnabas Kariuki v Nyeri Water & Sewerage Company Limited [2016] KEELC 678 (KLR)

High Court of Kenya
13 July 2016
LWL N Waithaka
1,681 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court allowed a plaintiff to amend his claim eight years after filing, ruling delay alone doesn't block amendments unless the other side proves real injustice.

What this practically means

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Executive summary

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The plaintiff, Barnabas Kariuki, filed a notice of motion dated 5th November 2015 seeking leave to amend his plaint in a land dispute against the defendant company, a suit filed on 30th November 2007. He wished to plead special damages said to flow from the defendant's alleged illegal occupation of the suit property, and to add an alternative claim for the current value of the property, contending these had been inadvertently omitted. The respondent opposed the application through the replying affidavit of its managing director, P.M Gichaaga, arguing that the mesne profits claim was time barred, that there was unexplained inordinate delay, and that the amendment would introduce a new cause of action and increase costs. In a ruling delivered at Nyeri on 13th July 2016, Waithaka J held that the court's discretion to allow amendments is wide and unfettered but must be exercised judicially. Although the application was brought nearly 8 years after filing, hearing had not commenced, so delay alone could not bar the amendment absent demonstrated injustice. The court found the amendment merely introduced claims related to the already pleaded cause of action of trespass to land, and that any prejudice could be compensated by costs, applying Central Kenya Ltd v Trust Bank and Eastern Bakery v Castelino. On limitation, the court held that amendment does not deprive the respondent of the right to plead time bar, citing Dhanesvar v Mehta. The application was allowed in terms of prayer 1, with the plaintiff to file and serve an amended plaint within 14 days (leave lapsing automatically otherwise), the respondent to file an amended defence within 14 days of service, and costs of the application awarded to the defendant/respondent.

Key legal issues

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01

Whether leave to amend the plaint to plead special damages and an alternative claim for current value of the suit property should be granted

Holding

Application allowed; the amendment introduces claims flowing from the already pleaded cause of action of trespass and causes no injustice compensable only by costs

Reasoning

The court found the pleaded cause of action to be trespass to land, and the amendment merely introduces related claims. Although there was nearly 8 years of delay, hearing had not commenced, so the suit was 'fairly fresh'. No new or inconsistent cause of action was introduced, and any prejudice could be compensated by costs, following Central Kenya Ltd v Trust Bank and Eastern Bakery v Castelino.

p. 3
02

Effect of the respondent's limitation objection

Holding

The respondent retains the right to plead limitation against any time-barred aspects of the amended claim

Reasoning

Relying on Dhanesvar V. Mehta vs Manilal M. Shah, the court held that limitation law removes remedies irrespective of merits but does not extinguish claims; an amendment permitting new claims does not prejudice the respondent's ability to raise a limitation defence at trial.

p. 3

Legal principles established

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  • The discretion of a trial court to allow amendments of pleadings is wide and unfettered but must be exercised judicially upon defined principles
  • Delay alone is not a ground for denying leave to amend where no injustice to the other side is demonstrated and the hearing has not commenced
  • Allowing an amendment does not take away the other party's right to plead limitation

Court orders

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  1. 1.Leave granted to the plaintiff to amend the plaint in terms of prayer 1 of the notice of motion dated 5th November, 2015
  2. 2.Plaintiff to file and serve the amended plaint within 14 days from the date of delivery of the ruling, failing which the leave shall automatically stand vacated
  3. 3.Respondent to file an amended statement of defence, if need be, within 14 days of service
  4. 4.Costs of the application awarded to the defendant/respondent

Authorities

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Legislation

  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder VIA rule 3

Cases cited (5)

  • Central Kenya Limited v Trust Bank limited
    (2000) 2 E.A 365
  • Institute For Social Accountability & Another v Parliament of Kenya & 3 others
    [2014] eKLR
  • Kuloba v. Oduol
    Nairobi High Court Civil Case No. 1 of 2000
  • Eastern Bakery V. Castelino
    [1958] E.A. 461
  • Dhanesvar V. Mehta vs Manilal M. Shah
    (1965) EA 321
Jurisdiction invoked
Section 100 as read with Order 8 Rule 3 of the Civil Procedure Act and Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Barnabas Kariuki v Nyeri Water & Sewerage Company Limited [2016] KEELC 678 (KLR)", Case Analysis (2016). Not stated in the judgment (application dated 5th November, 2015 in a suit filed 30th November, 2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/678/eng@2016-07-13

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