Malombe (Suing as the Power of Attorney for Janet Wakio Mgongo) v Wangai (Environment & Land Case 116 of 2019) [2024] KEELC 7039 (KLR)
The bottom line
#A Mombasa court let a defendant add a time-limit defence late, but made her pay Kshs. 50,000 and gave the plaintiff a chance to respond.
What this practically means
#Executive summary
#Key legal issues
#Legal principles on amendment of pleadings
The court may allow amendment at any stage under Section 100 of the Civil Procedure Act and Order 8 of the Civil Procedure Rules, 2010, but the discretion must be exercised judiciously; amendments should be timeously applied for, made in good faith, not change the character of the case, and not cause uncompensatable prejudice.
The court reviewed Order 8 Rules 3 and 5, Section 100 of the Civil Procedure Act, Bullen and Leake & Jacob's Precedents of Pleading, Halsbury's Laws of England, and Court of Appeal authority including Joseph Ochieng v First National Bank of Chicago and St. Patrick's Hill School v Bank of Africa, distilling the criteria for allowing amendments, including the caveat that an amendment will not be permitted if it causes prejudice or injustice not compensable by costs.
Whether the late application to amend the defence to raise limitation should be allowed
The application was allowed, with throw away costs of Kshs. 50,000 to the Plaintiff and corresponding leave to amend the Plaint.
Applying the amendment principles, the court found the amendment sought to raise the Limitation of Actions Act defence would enable determination of the real controversy, that the Plaintiff could be compensated by throw away costs and corresponding leave to amend, and directed that judgment date be taken after amended pleadings and submissions. The court emphasized efficient case management and that there must be an end to litigation, yet still found merit in the conditional allowance.
Costs of the application
Although costs normally follow the event under Section 27(1) of the Civil Procedure Act, the court elected to make no order as to costs, having awarded throw away costs to the Plaintiff.
The court restated that costs are discretionary and follow the event under Section 27(1) of the Civil Procedure Act, citing Supreme Court decisions of Jasbir Rai Singh v Tarchalan Singh and Cecilia Karuru Ngayo v Barclays Bank of Kenya, but in the circumstances of the case chose not to award any costs beyond the throw away costs of Kshs. 50,000.
Legal principles established
#- Amendments of pleadings should be freely allowed unless they cause prejudice to the other party which cannot be compensated by costs, must not change the character of the case, and must be made in good faith.
- Late amendments are more likely to cause injustice than amendments sought before hearing commences.
Court orders
#- 1.The Notice of Motion Application dated the 14th May, 2024 be and is hereby found to have merit hence allowed conditionally.
- 2.The Defendant granted leave to file her Amended Defence within 7 days of this ruling.
- 3.The Plaintiff be granted corresponding leave of 14 days upon service to file and serve an Amended Plaint and subsequent respective responses to the Amended Defence.
- 4.The Defendant/Applicant shall pay throw away costs of Kenya Shillings Fifty Thousand (Kshs. 50,000/-) within 7 days of this ruling.
- 5.The Plaintiff be granted 14 days leave to file and serve written submissions and subsequently, the Defendant to have 14 days leave to file and serve written submissions.
- 6.Mention on 10th December for compliance and taking a Judgement date.
- 7.There shall be no orders as to costs.
- Jurisdiction invoked
- Sections 3A, 63 & 100 of the Civil Procedure Act, Cap. 21 and Order 8 and Order 51 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malombe (Suing as the Power of Attorney for Janet Wakio Mgongo) v Wangai (Environment & Land Case 116 of 2019) [2024] KEELC 7039 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7039/eng@2024-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.