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ELCAllowedNot stated in judgment (amended notice of motion dated 15th May 2018)· [2018] KEELC 2280 (KLR)

Tulo Holdings Limited v Satinder Singh Kalsi & another [2018] KEELC 2280 (KLR)

High Court of Kenya
19 July 2018
JOJ.M. ONYANGO
1,115 words in judgment
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The bottom line

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Kenya's High Court allowed a very late amendment to pleadings, confirming that courts will permit changes unless the opposing side proves real prejudice.

What this practically means

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Executive summary

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This ruling of the High Court at Kericho (J.M. Onyango, J) determined the Plaintiff's amended notice of motion dated 15th May 2018, brought under Order 8 Rules 3 and 8 and Order 5 Rules 1, 4, 7 and 8 of the Civil Procedure Rules, seeking leave to amend the Defence and Counter-claim filed on 19th July 2013 and to have the draft amended Defence and Counter-claim deemed duly filed with summons issuing to the Counter-claim defendants. The Applicants wished to enjoin additional parties, including the County Government of Kericho (to explain rates payments to the defunct Municipal Council despite transfer to Tulo Holdings Ltd) and the Attorney General (under section 12 of the Government Proceedings Act), noting the existence of two grants over the suit land - the original grant of 29th June 1954 to John Steventon Ballentine and a disputed grant of 28th November 1979 to James Raymond Njenga. The Respondent opposed through the Replying Affidavit of Charles Maiyo, contending the amendment would introduce a new cause of action, reopen the case and defeat his right to be heard. The court applied the amendment principles from Mulla's Code of Civil Procedure as cited in Coffee Board of Kenya v Thika Coffee Mills and the Court of Appeal's decision in Joseph Ochieng v First National Bank of Chicago, holding that amendments should be allowed if necessary to determine the real controversy and absent demonstrated prejudice. Finding the Respondent had not stated the prejudice he would suffer, and guided by the overriding objective, the court allowed the application, deemed the draft amended Defence and Counter-claim duly filed upon payment of fees, directed service within 30 days, and ordered the applicants to bear the costs of the application.

Key legal issues

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01

Whether leave to amend the Defence and Counter-claim should be granted at this late stage

Holding

The application was allowed; the court exercised its wide discretion in favour of amendment, finding no demonstrated prejudice to the Respondent and guided by the overriding objective of the Civil Procedure Act.

Reasoning

The court adopted the principles in Mulla's Code of Civil Procedure as cited in Coffee Board of Kenya v Thika Coffee Mills, and the Court of Appeal's guidance in Joseph Ochieng v First National Bank of Chicago. Amendments necessary for determining the real controversy should be allowed; the Respondent alleged prejudice and reopening of the case but did not state what prejudice he would actually suffer. The overriding objective of just, expeditious, proportionate and affordable resolution favoured granting leave, with costs payable by the applicants.

p. 2

Legal principles established

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  • The court has a wide discretion in dealing with an application to amend pleadings unless the other side demonstrates serious prejudice
  • Amendments may be allowed at any stage of the proceedings, however late, if made in good faith and costs can compensate the other side

Court orders

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  1. 1.Leave granted to amend the Defence and Counter-claim filed on 19th July 2013
  2. 2.The draft amended Defence and Counter-claim to be deemed as duly filed upon payment of the requisite court fees
  3. 3.The amended Defence and Counter-claim to be filed upon the plaintiff and new defendants within 30 days
  4. 4.The applicants to bear the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 3 and 8; Order 5 Rule 1, 4, 7 & 8; Order I Rule 10(2); Order I Rule II
  • Government Proceedings Actsection 12
  • Civil Procedure Actoverriding objective

Cases cited (2)

  • Coffee Board of Kenya V Thika Coffee Mills Limited & 2 Others
    (2014) eKLR
  • Joseph Ochieng & 2 Others V First National Bank of Chicago
    Civil Appeal No. 149 of 1991
Jurisdiction invoked
Order 8 Rule 3 and 8 and Order 5 Rule 1, 4, 7 & 8 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, "Tulo Holdings Limited v Satinder Singh Kalsi & another [2018] KEELC 2280 (KLR)", Case Analysis (2018). Not stated in judgment (amended notice of motion dated 15th May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2280/eng@2018-07-19

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