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ELRCAllowedNot stated in the judgment· [2017] KEELRC 1676 (KLR)

Eunice Chepkorir Soi v Bomet Water Company Ltd [2017] KEELRC 1676 (KLR)

High Court of Kenya
24 February 2017
1,869 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the High Court at Kericho (Jane M. Onyango J) determined a Notice of Motion dated 5th September 2016 by the Defendant, Bomet Water Company Limited, in a part-heard land suit brought by Eunice Chepkorir concerning land parcel KERICHO/MOGOGOSIEK/527. The Defendant sought a stay of proceedings, setting aside of the hearing proceedings and consequential orders, and leave to file an Amended Defence out of time. The Respondent opposed, arguing the application was unmerited, overtaken by events since both parties had testified, prejudicial, and filed after inordinate delay. The court framed four issues: whether the application was merited, whether it was overtaken by events, whether the amendment would cause injustice, and whether it was made timeously. Relying on Order 8 Rule 5(1) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, the court held that the power to amend may be exercised at any stage, that premature certification under Order 11 Rule 1 did not oust the court's discretion, that no Reply to Defence had been filed so pleadings were not closed, and that counsel's inadvertence should not be visited on the client. The proposed amendment raised a fundamental triable issue - whether the suit was statute-barred under Section 7 of the Limitation of Actions Act. Finding no irreparable prejudice compensable by costs, the court allowed the application, directed filing of the Amended Defence within 7 days, and awarded the Plaintiff the costs of the application.

Key legal issues

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01

Whether leave to amend the Defence should be granted at a late, part-heard stage

Holding

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

Reasoning

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.

p. 3
02

Whether the amendment would cause injustice to the Respondent

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Application dated 5th September 2016 allowed
  2. 2.Applicant to file their Amended Defence within 7 days
  3. 3.Plaintiff to have the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 8 Rule 5(1)
  • Civil Procedure RulesOrder 11 Rule 1
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 1A and 1B
  • Limitation of Actions ActSection 7

Cases cited (6)

  • Bosire Ongero Vs Royal Media Services
    2015 KLR
  • Patel Vs Amin
    Nairobi HCCC No. 159 of 1981
  • Nzirane V Lukwago
    1971 EA 328
  • Eastern Bakery V Castelino
    1958 EA 461
  • Institute for Social Accountability & Another V Parliament of Kenya and 3 Others
    2014 KLR
  • Daniel Ngetich & Another Vs KRep Bank Limited
    2013 KLR
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

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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, "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.