Eldoret Express Company Limited v David Kamande Muiruri [2018] KEELC 3690 (KLR)

High Court of Kenya

4 March 2018

LWL N Waithaka

1,285 words in judgment

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The bottom line

A Kenyan court refused a company's late attempt to change its lawsuit three years into the hearing, because the delay would unfairly prejudice the other side.

What this practically means

Executive summary

Eldoret Express Limited, the plaintiff in a land dispute against David Kamande Muiruri concerning transfer and occupation of suit property, applied by notice of motion dated 21st April 2017 for leave to further amend its plaint. The proposed amendments sought declarations that a third party acted without instructions, that the transaction was fraudulent and null and void, correction of registry records, and joinder of Joseph Arap Maina and Albert Kuloba as defendants. The application was supported by the affidavit of director Joseph Nganga Thungu and opposed by the defendant, who contended it was a delaying tactic filed after hearing had reached an advanced stage, without explanation for the delay, and effectively a shortcut to a fresh suit against the proposed defendants. The court considered the amendment powers under Section 100 of the Civil Procedure Act and Order 8 Rule 3 of the Civil Procedure Rules, and applied the principles in Central Kenya Limited v Trust Bank Limited: amendments are allowed to determine the real question in controversy provided there is no undue delay, no new or inconsistent cause of action, no affected vested interest, and no injustice to the other side. The court found the proposed reliefs did not substantially differ from those in the existing amended plaint and added no value. Hearing had commenced on 18th February 2014, and by the time of the earlier amendment in March 2014 four witnesses had testified, during which the involvement of Maina (who had been arrested and charged) and advocate Kuloba had already emerged. The plaintiff's explanation for the three-year delay was unsatisfactory. The court held that allowing the amendment would waste judicial time and cause injustice to the defendant, and dismissed the application with costs.

Key legal issues

Whether leave to further amend the plaint should be granted at an advanced stage of the hearing

Holding

The application was dismissed. The proposed reliefs did not substantially differ from those already pleaded, the amendments added no value, and the delay of three years after hearing commenced was unexplained and prejudicial.

Reasoning

The court set out the statutory power under Section 100 CPA and Order 8 Rule 3 CPR and the Central Kenya Ltd principles. It found the reliefs in the draft further amended plaint substantially mirrored the amended plaint. Hearing had begun in February 2014 with four witnesses already heard; the plaintiff had known of the involvement of Maina and advocate Kuloba since PW3's evidence yet did not seek joinder then. The explanation for the late application was unsatisfactory, and allowing amendment would waste judicial time and injure the defendant.

p. 2

Legal principles established

The court may at any time amend any defect or error in a proceeding, and all necessary amendments shall be made for determining the real question in controversy
Amendments are allowed where necessary to determine the real question in controversy or avoid multiplicity of suits, provided there is no undue delay, no new or inconsistent cause of action, no affected vested interest, and no injustice to the other side

Court orders

1.The notice of motion dated 21st April 2017 seeking leave to further amend the plaint is dismissed
2.Costs of the application to the defendant

Authorities

Legislation

Civil Procedure ActSection 100
Civil Procedure RulesOrder 8 Rule 3
Civil Procedure RulesOrder 1 rules 9 and 10; Order 24 rules 3, 4, 5 and 6

Cases cited (1)

Central Kenya Limited v Trust Bank Limited
(2000) 2 E.A 365

Jurisdiction invoked: Section 100 of the Civil Procedure Act and Order 8 Rule 3 of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Eldoret Express Company Limited v David Kamande Muiruri [2018] KEELC 3690 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3690/eng@2018-03-04

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