Mugumoini Farmers Co. Ltd v Inshwil Builders Engineering Ltd; Ephraim Waithaka Ruitha & another(Interested Parties) [2022] KEELC 1395 (KLR)
The bottom line
#A Murang'a court refused a company's last-minute request to change its defence after the plaintiff's case had closed, calling the timing bad faith.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to amend a defence should be granted after the Plaintiff's case has closed
Leave refused; the application was filed late and in bad faith and the amendments would reopen pleadings, delay trial and prejudice the Plaintiff
The court applied Order 8 Rules 3 and 5 and the Ochieng principles: timeliness, good faith, nature of amendments, no new or inconsistent cause of action, and no injustice. The matters sought to be introduced were within the Defendant's knowledge since filing; the application was filed only on the hearing date; five witnesses had testified and the Plaintiff had closed its case, with one witness deceased. Allowing amendment would reopen pleadings and occasion injustice.
Who should pay costs of the application
Costs awarded to the Plaintiff/Respondent as costs follow the event
Under Section 27 of the Civil Procedure Act, costs follow the event unless the court has reason to depart from that rule. The application having been dismissed, there was no reason to deny the successful Respondent its costs.
Legal principles established
#- Where a matter has been partly heard, the court ought to be slow in allowing an amendment to a pleading since it is likely to be prejudicial, especially where the opposite party has already tendered evidence
- The purpose of amendment of pleadings is to facilitate determination of the real question in controversy, but amendment will not be allowed at a late stage of trial if intended to advance a new ground of defence
- Costs follow the event unless the court exercises its discretion otherwise
Court orders
#- 1.The Defendant's/Applicant's application dated 11th November 2021 is dismissed entirely
- 2.Costs of the application awarded to the Plaintiff/Respondent
- 3.The main suit shall proceed for hearing of the Defence case
- Jurisdiction invoked
- Order 8 Rules 3 and 5 of the Civil Procedure Rules; Section 27 of the Civil Procedure Act; Article 50 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugumoini Farmers Co. Ltd v Inshwil Builders Engineering Ltd; Ephraim Waithaka Ruitha & another(Interested Parties) [2022] KEELC 1395 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1395/eng@2022-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.