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ELCDismissedEnvironment & Land Case 355 of 2016· [2023] KEELC 20460 (KLR)

Bank of Africa Kenya Ltd v Kikambala Housing Estate Limited & another

Environment and Land Court
5 October 2023
EME. K. Makori
2,438 words in judgment
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The bottom line

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A Kenyan court refused a late attempt to change a defence and add a counterclaim, ruling you cannot relitigate issues already pending in other courts.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (E. K. Makori, J) determined a notice of motion dated 6th September 2023 by the 1st defendant, Kikambala Housing Estate Limited, seeking leave to amend its defence and introduce a counterclaim, and to introduce additional supporting documents, in a 2016 suit by Bank of Africa Kenya Ltd over a charge transaction. The applicant argued that amendments may be sought at any stage, that no new cause of action was introduced, and that the amendment would avoid multiplicity of suits. The respondent opposed, contending the application was a late attempt to delay a hearing fixed for 9th October 2023, that the issues sought to be introduced were already pending in Mombasa suits (HCC No 2 of 2018 and HCC No 58 of 2015), and that the pleadings had been drawn five years earlier. The court framed one issue: whether an amendment could be allowed at that stage. Applying the established principles on amendment of pleadings and the sub judice doctrine under section 6 of the Civil Procedure Act, the court held the amendment was not timeous, introduced new and inconsistent causes of action already actively litigated in other courts, and would create parallel litigation risking conflicting decrees. The proposed inhibition order would also cast the court in a supervisory role over other competent courts. The application was dismissed with costs and the matter was directed to proceed as scheduled.

Key legal issues

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01

Whether leave to amend the defence and counterclaim should be granted at this late stage

Holding

The application was dismissed because the amendment was not timeous, introduced new and inconsistent causes of action already litigated elsewhere, and would offend the sub judice rule under section 6 of the Civil Procedure Act.

Reasoning

The suit was filed in 2016 and the applicant had ample time to amend. The proposed counterclaim sought to collapse two pending Mombasa suits into this case, claiming damages and an inhibition arising from those suits. That would create parallel litigation over the same subject matter, risk conflicting decrees by courts of coordinate jurisdiction, and prejudice the respondent. Amendments must be made timeously and must not introduce new or inconsistent causes of action.

p. 3

Legal principles established

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  • Amendments may be allowed at any stage if they raise the real issues, but not where they introduce new or inconsistent causes of action, are late, or prejudice the other side
  • The sub judice rule bars proceedings where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties

Court orders

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  1. 1.The application dated 6th September 2023 is dismissed with costs
  2. 2.The matter is to proceed as scheduled

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 100
  • Civil Procedure Rules (repealed)Order VIA rule 3

Cases cited (6)

  • Lewar Ventures Limited v Equity Bank (Kenya) Limited
    [2022] eKLR

    Summarising principles governing amendment of pleadings

  • Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited
    [2013] eKLR

    Principles on amendment of pleadings under section 100 of the Civil Procedure Act

  • Joseph Ochieng & 2 others v First National Bank of Chicago
    Civil Appeal No. 149 of 1991

    Ratio on the court's power to allow amendments, including timeousness, good faith and prejudice

  • Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 others
    [2022] eKLR

    Doctrine of sub judice under section 6 of the Civil Procedure Act

  • Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] eKLR

    Purpose and elements of the sub judice rule

  • David Ndii & others v Attorney General & Others
    2021 eKLR

    Rationale of section 6 - it is vexatious and oppressive to sue concurrently in two courts

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; amendment of pleadings under section 100 of the Civil Procedure Act and Order 8 of the Civil Procedure Rules

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, "Bank of Africa Kenya Ltd v Kikambala Housing Estate Limited & another", Case Analysis (2023). Environment & Land Case 355 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20460/eng@2023-10-05

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