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ELCAllowed· [2017] KEELC 2089 (KLR)

Veronica Wambui Muibiri v Veronica Wangui Mwangi [2017] KEELC 2089 (KLR)

High Court of Kenya
14 July 2017
BOB.N. Olao
1,161 words in judgment
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The bottom line

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The High Court allowed a defendant to amend her defence, add a new party, and file a counter-claim, ruling that amendments should be freely allowed.

What this practically means

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Executive summary

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This is a ruling by B.N. Olao, Judge, delivered on 14th July 2017, on the defendant's Notice of Motion dated 13th December 2016 brought under Order 1 Rules 10 and 35 of the Civil Procedure Rules. The defendant sought leave to amend her defence and file a counter-claim, and to join Joseph Wanjohi Mwangi as a defendant to the counter-claim. The application was supported by an affidavit sworn by the defendant's advocate, Mwaniki Warima, and opposed by the plaintiff, who argued she had not been served with the original defence, that the advocate lacked capacity to swear the supporting affidavit, and that the application was incompetent. The court held that, per Order 19 Rule 3(1) and the Kamlesh Patni decision, there is no express prohibition on an advocate swearing an affidavit on facts within his own knowledge, though it criticised the affidavit as lacking useful content and deplored the absence of a draft amended defence and counter-claim, as well as counsel raising key facts only in submissions. Applying the Central Kenya Ltd v Trust Bank Ltd principle that amendments should be freely allowed absent prejudice not compensable in costs, the court found Joseph Wanjohi Mwangi, alleged to have sold the disputed land to the defendant, to be a necessary party; there was no undue delay since pre-trial directions had not been complied with, and the plaintiff could be compensated by costs. The application was allowed: the defendant to amend and file a counter-claim within 15 days, the plaintiff to reply within 15 days of service, with the defendant meeting the costs of the application.

Key legal issues

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01

Competence of an affidavit sworn by the defendant's advocate

Holding

The affidavit sworn by counsel was not objectionable in principle, though it lacked useful content and no draft amended pleadings were annexed.

Reasoning

The court held that Order 19 Rule 3(1) permits a deponent to state facts of his own knowledge, and following Kamlesh Patni, there is no express bar on an advocate swearing an affidavit for his client on facts he can personally prove. However, the court criticised the affidavit as bereft of useful information and deplored counsel's casual approach, noting key facts appeared only in submissions.

p. 2
02

Whether leave to amend and join Joseph Wanjohi Mwangi should be granted

Holding

Leave was granted because the proposed joinder was a necessary party, there was no undue delay, and any prejudice was compensable in costs.

Reasoning

Applying the guiding principle in Central Kenya Ltd v Trust Bank Ltd, amendments should be freely allowed unless they prejudice the opposite side beyond compensation in costs. Since Joseph Wanjohi Mwangi sold the disputed land to the defendant, he was necessary for complete adjudication; pre-trial directions had not been complied with, so there was no undue delay.

p. 2

Legal principles established

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  • An advocate who can prove facts of his own knowledge may state them in an affidavit on behalf of his client; there is no express prohibition against an affidavit sworn by counsel.
  • Amendments to pleadings should be freely allowed at any stage provided no prejudice or injustice incapable of compensation in costs is caused to the other party.

Court orders

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  1. 1.The defendant is allowed to amend her defence to enjoin JOSEPH WANJOHI MWANGI and also file a counter-claim within 15 days of this ruling being delivered
  2. 2.The plaintiff shall have 15 days from the date of service of the amended defence and counterclaim to file a reply and defence to the same
  3. 3.The defendant shall meet the costs of this application

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10
  • Civil Procedure RulesOrder 1 Rule 35
  • Civil Procedure RulesOrder 19 Rule 3(1)
  • Civil Procedure RulesOrder 18 Rule 3(1)
  • Civil Procedure RulesOrder II (pre-trial directions)

Cases cited (3)

  • KAMLESH PATNI VS NASIR IBRAHIM ALI & OTHERS
    C.A Civil Appeal No. 354 of 2004 (NBI)
  • CENTRAL KENYA LTD VS TRUST BANK LTD & OTHERS
    C.A Civil Appeal No. 222 of 1998 (2002 e K.L.R)
  • BECOCO LTD VS ALFA LAVAL CO. LTD
    1994 4 ALL E.R 464
Jurisdiction invoked
Order 1 Rules 10 and 35 and Order 19 Rule 3(1) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Veronica Wambui Muibiri v Veronica Wangui Mwangi [2017] KEELC 2089 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2089/eng@2017-07-14

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