Paul Koech v Robert Kipkoech Mutai [2020] KEELC 3914 (KLR)
The bottom line
#A Kericho court let a defendant rewrite his weak defence mid-case, but made him pay costs for the careless paperwork and flawed third-party joinder.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to amend the defence should be granted
Leave was granted; the existing defence was shallow and bare denials, and the amendment would enable the real issues in controversy to be determined without injustice compensable by costs
The court held that the existing defence was of shallow substance consisting largely of bare denials. Amendment is discretionary and should be allowed to determine real questions in dispute and do substantial justice. Concerns of the Plaintiff and proposed third party could be compensated by costs, and refusal at an early stage would deny the Defendant the right to plead his case fully. Shortcomings in the counter-claim would benefit, not prejudice, the opposing parties.
Proper procedure for enjoining a third party
The proposed third party was improperly joined; the correct route may be to name him as a defendant in the counter-claim under Order 7 Rule 8 and Order 8 Rule 1(5)
The court observed that a third party is properly enjoined where the Defendant contends that a third person should bear liability in the claim against him, following the procedure in Order 1. Here the third party was introduced without compliance with that procedure. The court suggested, without directing, that the person be made a defendant to the counter-claim instead, leaving the choice to the Defendant.
Legal principles established
#- The court has a wide discretion to allow amendment at any stage to determine the real questions in dispute or do substantial justice, provided the other side can be compensated by costs.
- An amendment cannot change the character of the suit; it must flow from the original suit, must be made in good faith, and an injury compensable by costs is not an injustice.
Court orders
#- 1.Leave granted to the Defendant to amend his defence
- 2.Costs of the application to be paid by the Defendant to both the Plaintiff and the named third party
- 3.Suggestion (not a directive) that the proposed third party be enjoined as a defendant in the counter-claim under Order 7 Rule 8 and Order 8 Rule 1(5) of the Civil Procedure Rules, 2010
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act (cap 21) and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mary Munyuli Luseka v Brand Kenya Board [2020] KEELRC 625 (KLR)[2020] KEELRC 625 (KLR)28 Jul 2020
Cite this brief
#Cite this brief
Caselaw, "Paul Koech v Robert Kipkoech Mutai [2020] KEELC 3914 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3914/eng@2020-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.