Kyunga v Kenya Commercial bank Ltd & another; Karaya (Interested Party) (Environment and Land Case 324 of 2008) [2024] KEELC 4273 (KLR)
The bottom line
#A Kenyan court confirmed that withdrawing a lawsuit doesn't kill a counterclaim — it can continue on its own, and pleadings can still be amended.
What this practically means
#Executive summary
#Key legal issues
#Effect of withdrawal of the main suit on the counterclaim
The withdrawal of the main suit by the Plaintiff does not affect the Interested Party's counterclaim, which has legal validity and may proceed independently.
The court noted that a counterclaim is treated as a distinct and independent action. Under Order 7 Rule 13, where the plaintiff's suit is stayed, discontinued or dismissed, the counterclaim may still be proceeded with. The court agreed with Yano J's earlier ruling that the Interested Party could not be denied his day in court, as that would infringe his constitutional rights to a fair hearing under Articles 25(c) and 50(1) and (2).
Whether leave should be granted to amend the Defence and Counterclaim
Leave to amend was granted; the court has unfettered but judicious discretion to allow amendments at any stage, and no prejudice would be suffered by the other parties.
Relying on Order 8 Rules 3 and 5 of the Civil Procedure Rules, the court held amendments should be freely allowed if made in good faith and if costs can compensate the other side. The proposed amendments arose from developments since 2008 that altered the character of the case, and the hearing of the counterclaim had not commenced, so no prejudice would be caused.
Whether leave should be granted to file supplementary lists of witnesses, statements and documents
Leave was granted because the trial of the counterclaim was at an early stage and no prejudice would be suffered by the other parties.
The court weighed prejudice to the parties and found none, since the hearing of the counterclaim had not commenced when the motion to amend was filed, and the other parties could file additional statements if they wished. The court was guided by Article 50 and Article 159(2)(d) of the Constitution in the interest of justice.
Costs of the application
Costs were awarded to the Interested Party as the successful applicant, costs following the event under Section 27 of the Civil Procedure Act.
The court reaffirmed that costs are discretionary and ordinarily follow the event unless the court for good reason orders otherwise, citing Section 27(1) of the Civil Procedure Act and Mulla's and Kuloba's texts. Having been convinced to grant the prayers sought, the applicant was entitled to costs.
Legal principles established
#- A counterclaim is an independent action; the withdrawal, dismissal or discontinuance of the main suit does not automatically affect its prosecution.
- Under Order 7 Rule 13 of the Civil Procedure Rules, 2010, a counterclaim may proceed even where the plaintiff's suit is stayed, discontinued or dismissed.
- The court has a wide discretion to allow amendment of pleadings at any stage of the proceedings on such terms as are just.
- Costs follow the event unless the court, for good reason, orders otherwise (Section 27, Civil Procedure Act).
Court orders
#- 1.The Notice of Motion application dated 18th May, 2022 is found to have merit and is allowed in its entirety
- 2.Leave granted to the Interested Party/Applicant to amend, file and serve the Amended Defence and Counter Claim in terms of the draft annexed, within seven (7) days from the date of the Ruling
- 3.Leave granted to the Interested Party/Applicant to file and serve supplementary list of witnesses, statements and documents
- 4.The Plaintiff granted corresponding leave to file and serve Amended Plaint and Reply to the Amended Defence and Defence to the Amended Counter Claim within 7 days from the date of service
- 5.Matter fixed for hearing on 26th September, 2024, with a mention on 17th July, 2024 for pre-trial conference pursuant to Order 11 of the Civil Procedure Rules, 2010
- 6.Costs of the Notice of Motion application dated 18th May, 2022 awarded to the Interested Party/Applicant
- Jurisdiction invoked
- Original civil jurisdiction under the Civil Procedure Act (Cap 21) and the Civil Procedure Rules, 2010 (Order 8 Rules 3, 5 and 7; Order 51 Rule 1; Order 11 Rule 7; Sections 1A, 1B, 63(e) and 100)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kyunga v Kenya Commercial bank Ltd & another; Karaya (Interested Party) (Environment and Land Case 324 of 2008) [2024] KEELC 4273 (KLR)", Case Analysis (2024). not stated in the judgment (Mombasa ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4273/eng@2024-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.