Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
High CourtPartially Allowed

Not stated in the judgment (ruling on two interlocutory applications in a suit with counterclaim)

High Court of Kenya
28 July 2020
1,922 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Courts allow you to update your legal defense to include new facts, but you must strictly adhere to procedural deadlines for bringing in new parties.

What this practically means

#

Executive summary

#
This interlocutory ruling by the High Court at Nyamira (E. N. Maina, J) determined two applications filed on 8th July 2020 by the plaintiff/defendant in the counterclaim, an insurance dispute in which the counterclaimant alleged her motor vehicle was insured for Motor Commercial (General Cartage) Comprehensive cover permitting use for hire and reward, while the applicant maintained the cover was for private commercial use only. The first application, an ex-parte Chamber Summons dated 2nd July 2020, sought leave to issue a Third Party Notice against NIC Insurance Agency Limited, on the basis that any fraud, illegality or unfair business practices alleged by the counterclaimant could only have been committed by the agent, which drafted the policy documents, and that the applicant was entitled to contribution or indemnity. The second, a Notice of Motion dated 1st July 2020, sought leave to amend the Defence to Counterclaim to plead a defence to the fraud and illegality allegations and to include a motor vehicle assessment report estimating repairs at approximately Kshs. 300,000.00. The court refused the third party application on two grounds: under Order 1 rule 15(1) such applications must be made within fourteen days after close of pleadings, and the last pleading (the Reply to the Defence to Amended Counterclaim) was filed on 18th December 2019, over six months earlier; and the application was abandoned because counsel did not urge it. The amendment application was allowed under Order 8 rule 1, the court holding amendments may be granted at any stage and that no prejudice incapable of compensation by costs would be suffered. The amended defence was to be filed and served within fourteen days, with a corresponding fourteen days for the respondent's reply, and the hearing was rescheduled from 29th July 2020 to 22nd October 2020. The applicant was ordered to bear the costs of both applications.

Key legal issues

#
01

Timeliness of third party notice applications

Holding

The third party notice application was refused because it was filed more than six months after the close of pleadings, well beyond the fourteen-day window in Order 1 rule 15(1).

Reasoning

The court identified the last pleading in the counterclaim as the Reply to the Defence to Amended Counterclaim filed on 18th December 2019, meaning pleadings closed more than six months before the application. The statutory fourteen-day period had long lapsed, so the application could not be entertained. Independently, counsel did not urge the application, leading the court to treat it as abandoned.

p. 3
02

Leave to amend defence to counterclaim at a late stage

Holding

Leave to amend the Defence to Counterclaim was granted because amendments would help determine the real issues and no prejudice beyond compensable costs would result.

Reasoning

The applicant wished to plead a defence to allegations of fraud and illegality omitted from its defence to counterclaim, and to include an assessment report. Applying Order 8 rule 1, the court held amendments may be allowed at any stage; the respondent's objections (indolence, difficulty recalling witnesses) did not outweigh the interests of justice, as prejudice could be compensated by costs.

p. 3

Legal principles established

#
  • Applications for leave to issue a third party notice must be made within fourteen days after the close of pleadings under Order 1 rule 15(1) of the Civil Procedure Rules
  • The court has power to grant leave to amend pleadings at any stage of the proceedings where no prejudice incapable of compensation by costs is suffered

Court orders

#
  1. 1.The application for leave to issue a Third Party Notice against NIC Insurance Agency Limited is refused as out of time and abandoned
  2. 2.Leave granted to amend the Defence to Counterclaim
  3. 3.The amended Defence to Counterclaim to be filed and served within fourteen days of the order
  4. 4.The respondent to have fourteen days thereafter to file and serve her reply to the amended defence
  5. 5.The case taken out of the cause list for 29th July 2020 and to be fixed for further hearing on 22nd October 2020
  6. 6.The applicant to bear the costs of both applications
Jurisdiction invoked
Original civil jurisdiction; Civil Procedure Rules (Order 1 rule 15(1) and Order 8 rule 1)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Not stated in the judgment (ruling on two interlocutory applications in a suit with counterclaim)", Case Analysis (2020). . Source: 

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