Eunice Chepkorir Soi v Bomet Water Company Ltd [2017] KEELRC 1676 (KLR)
The bottom line
#Kenya's High Court let a company add a late defence raising a limitation argument, showing courts will allow amendments even mid-trial if fair.
What this practically means
#Executive summary
#Key legal issues
#Whether leave to amend the Defence should be granted at a late, part-heard stage
The application for leave to file an Amended Defence out of time was merited; the wide discretion under Order 8 Rule 5(1) applies at any stage and the applicant gave a satisfactory explanation for delay
Order 8 Rule 5(1) confers a wide discretion to allow amendment at any stage. The delay was explained by a change of advocates and inadvertence of counsel, whose error should not be visited on the client. No Reply to Defence had been filed, so pleadings were not closed when certification occurred. The proposed amendment raised a fundamental triable issue on limitation, helping determine the real controversy.
Whether the amendment would cause injustice to the Respondent
No injustice warranting refusal was established; the amendment introduced a triable limitation defence without altering the character of the suit or creating a time-barred new cause of action
Amendment should be refused only where the other party cannot be compensated in costs or where the amendment creates a new time-barred cause of action, changes the subject matter, or abuses process. The proposed Defence raised whether the suit is statute-barred under Section 7 of the Limitation of Actions Act, a real question in controversy, and the Respondent could be compensated by costs.
Legal principles established
#- The court's power to allow amendment of pleadings under Order 8 Rule 5(1) may be exercised at any stage of the proceedings, including after judgment or on appeal
- Amendment of pleadings should be freely allowed unless it works injustice to the other party which cannot be compensated by costs, or is made in bad faith or to abuse the process of the court
- Certification of a case as ready for hearing does not take away the court's inherent discretion under Section 3A of the Civil Procedure Act
- The mistake or error of an advocate should not be visited upon the client
Court orders
#- 1.Application dated 5th September 2016 allowed
- 2.Applicant to file their Amended Defence within 7 days
- 3.Plaintiff to have the costs of the application
- Jurisdiction invoked
- Inherent jurisdiction under Section 3A of the Civil Procedure Act and Order 8 Rule 5(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eunice Chepkorir Soi v Bomet Water Company Ltd [2017] KEELRC 1676 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1676/eng@2017-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.