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ELCPartially AllowedNot stated in the excerpt (Notice of Motion dated 25th November 2020)· [2021] KEELC 1660 (KLR)

Dhamini Limited v Tanad Transporters Ltd & another [2021] KEELC 1660 (KLR)

High Court of Kenya
6 October 2021
666 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs moved the court by Notice of Motion dated 25th November 2020 seeking leave to amend their plaint, list of witnesses and list of documents. The application, supported by an affidavit of Baraza Alex Tabulo, the Director of the Plaintiff company, was premised on the allegation that the Defendants had, during the pendency of the suit, fraudulently changed the subject matter from L.R 36/IV to L.R 36/IV/107 and obtained a grant over the altered property, and had lost a prior suit over it (Laiser Communications Ltd v Tanad Transporters Ltd & 4 others). The Defendants were granted 14 days to respond but filed nothing, so the application was unopposed. The sole issue was whether a plaint may be amended after pleadings close. Relying on Order 8 Rule 3(2) of the Civil Procedure Rules 2010, and the principles in Ochieng & Others v First National Bank of Chicago (approved in St Patrick's Hill School Ltd v Bank of Africa Kenya Ltd) and Central Kenya Ltd v Trust Bank Ltd, the court held that amendments are to be liberally allowed unless prejudice or injustice would result which costs cannot compensate. Because the amendment was sought early, before hearing and before any defence was filed, and in good faith to aid determination of the true merits, the court found the application merited, allowed it, and made no orders as to costs. Judgment delivered virtually on 6th October 2021.

Key legal issues

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Whether leave to amend a plaint should be granted before hearing where pleadings are not closed

Holding

The application was merited; the amendment was sought early, in good faith, and caused no prejudice to the defendants who had not filed a defence.

Reasoning

Order 8 Rule 3(2) confers a discretion to allow amendment at any stage based on the circumstances of each suit. Applying the principles in Ochieng v First National Bank of Chicago as approved in St Patrick's Hill School, and Central Kenya Ltd v Trust Bank, the court found the amendment timely, made in good faith, aimed at determining the true merits, and free of prejudice since no defence had been filed and the matter was not set for hearing.

p. 2

Legal principles established

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  • Amendments to pleadings will be liberally and freely permitted unless prejudice or injustice is occasioned to the opposite party, which can be compensated by costs.

Court orders

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  1. 1.Leave granted to amend the plaint, list of witnesses and list of documents as sought in the Notice of Motion dated 25th November 2020
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 8 Rule 3(2)
  • Limitation ActGeneral (as referenced in principles quoted)

Cases cited (4)

  • Ochieng & Others v First National Bank of Chicago
    Civil Appeal No. 147 of 1991 (unreported)
  • St Patrick's Hill School Ltd v Bank of Africa Kenya Ltd
    [2018] eKLR
  • Laiser Communications Ltd vs Tanad Transporters Ltd & 4 others
    [2010] eKLR
  • Central Kenya Ltd v Trust Bank Ltd
    [2000] EALR 365
Jurisdiction invoked
Order 8 Rule 3(2) of the Civil Procedure Rules 2010

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, "Dhamini Limited v Tanad Transporters Ltd & another [2021] KEELC 1660 (KLR)", Case Analysis (2021). Not stated in the excerpt (Notice of Motion dated 25th November 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1660/eng@2021-10-06

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