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ELCAllowedNot stated in the judgment· [2021] KEELC 2974 (KLR)
Wood Street Clinic and Nursing Home Limited v Samuel Karanja Thuita & another [2021] KEELC 2974 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court allowed a plaintiff to amend its lawsuit to add claims against a second defendant, because no real prejudice was shown.
What this practically means
#Executive summary
#The court ruled on a Notice of Motion dated 28th July 2020 by the plaintiff, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 8 Rule 3(1) of the Civil Procedure Rules, seeking leave to amend the plaint to plead appropriate relief against the 2nd defendant, and liberty to file additional documents and witness statements. The application was supported by the affidavit of Amina Ali Adhan, a director of the plaintiff company, and opposed by the 1st defendant, Samuel Karanja Thuita, who contended that the amendments came too late, were not made in good faith, and would cause prejudice not curable by costs. The parties filed written submissions by consent. Framing the sole issue as whether the application was merited, the court set out Order 8 rules 3(1) and 5 and applied the test in Ann Muthoni Karanu v La Nyavu Gardens Ltd, drawing on Cobbold v Greenwich LBC and Central Kenya Ltd v Trust Bank Ltd: amendments ought to be allowed so the real dispute is adjudicated, provided prejudice is compensable in costs, there is no undue delay, no vested interest is affected, and no uncompensated injustice results. The court found the 1st defendant had not demonstrated any prejudice, the suit was not set down for hearing, and the amendments would not defeat the defences. The application was allowed: leave to amend the plaint was granted, the draft amended plaint deemed filed upon payment of fees, with twenty-one days for service, corresponding amendments to defences, and filing of additional documents and witness statements, and costs of the application were awarded to the plaintiff's side to bear, i.e. borne by the plaintiff.
Key legal issues
#01
Whether leave to amend the plaint to seek relief against the 2nd defendant should be granted
Holding
Yes - the amendments are necessary to resolve all issues and the 1st defendant demonstrated no prejudice
Reasoning
Applying Order 8 rules 3(1) and 5, and the test in Cobbold as expounded in Central Kenya Ltd v Trust Bank Ltd, amendments are allowed where necessary to determine the real questions in controversy, absent undue delay, affected vested interests, or prejudice not compensable in costs. The suit was not set down for hearing, so the 1st defendant failed to show what prejudice the amendments would cause or that they would defeat his defences.
p. 2
Legal principles established
#- Amendments should be allowed so that the real dispute between the parties can be adjudicated upon, provided any prejudice is compensable in costs and the public interest is not significantly harmed
- The power to allow amendments is discretionary and very wide; amendments will be allowed where there is no undue delay, no vested interest is affected and no uncompensated prejudice is caused
Court orders
#- 1.Leave granted to the plaintiff to amend the plaint to seek appropriate relief against the 2nd defendant
- 2.Draft amended plaint deemed duly filed upon payment of requisite fees and to be served on the defendants within twenty-one (21) days
- 3.Defendants granted corresponding leave to amend their defences if need be within twenty-one (21) days
- 4.Plaintiff at liberty to file additional documents and witness statements within twenty-one (21) days, with corresponding leave to the defendants
- 5.Costs of the application to be borne by the plaintiff
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 8 Rule 3(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wood Street Clinic and Nursing Home Limited v Samuel Karanja Thuita & another [2021] KEELC 2974 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2974/eng@2021-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.