Samuel O Tima & 1 other v Housing Finance Company of Kenya & 1 other

4. The application was supported by the affidavit of Joseph K Kania that was sworn and filed on 22 nd September 2009 and filed on 25th September 2009. He reiterated the grounds on the face of the application and further deposed that both the Plaintiff and the 2nd Defendant stood to suffer no prejudice if the orders sought were granted for the reason that the intended amendments were in response to the further amendments that had been made by the parties. The 2nd Defendant did not oppose the application. 5. The Plaintiffs’Replying Affidavit was sworn by Samuel O Tima on 9 th November 2009. It was filed on the same date.The deponent contended that the 1 st Defendant’s application sought to extinguish his right that had accrued from the ruling of Azangalala J on 4 th December 2007. He was emphatic that the intended amendment would be prejudicial and cause injustice to him and the 2 ndPlaintiff. It was his averment that the intended amendments were actuated by bad faith, which smacked of wanton and virulent distortion of clear and pertinent facts and that they did not raise any new points but sought to plead legal arguments. 6. The 1st Defendant filed its written submissions dated 25 th April 2013 on 26th April 2013 and further written submissions dated 3rd March 2014 on 11th March 2014. The crux of its submissions was that the delay in executing the application was explainable and that the provisions of the Civil Procedure Rules applicable at the time allowed the court to grant an amendment to pleadings if it was of the considered opinion that no party would be prejudiced by such amendment and if the same could be compensated by an award for costs. 7. It referred the court to the cases of Civil App No NAI 100 of 1995 Henry NjauKingoro v John K Mugui, HCCC No 1811 of 1999 Blueshield Insurance Co. Limited v Richard Mbondo& 2 Others and Registered Trustees Church of God East Africa (K) v Fredrick MaengweMatara& 8 Others (2013) eKLR to buttress its arguments. 8. In their submissions dated 27th May 2013 and filed on 28th May 2013,the Plaintiffs submitted that the delay of over four (4) years that the 1 st Defendant took in prosecuting its application was inordinate delay and was aimed at distorting the facts. 9. In support of their allegation relating to inordinate delay, the Plaintiffs relied on the case of Joseph Ochieng v First National Bank of Chicago CA No 149 of 1991. They further submitted that the Court ought to dismiss the 1st Defendant’s application as it was only meant to waste the court’s time. LEGAL ANALYSIS 10. In a ruling of Lesiit J dated 29 th June 2009 and delivered on 17th July 2009, the 2nd Defendant was granted leave to file and serve it amended defence. The Plaintiff and the 1 st Defendant were granted corresponding leave to file and serve amended pleadings if they deemed it necessary within fourteen (14) days of service of the amended defence of the 2 nd Defendant. The Plaintiffs did not, however, make any reference to this rulingin their Replying affidavit sworn on 9th November 2009. 11. They alleged that the 1st Defendant was conversant with the issues in the matter, having filed its Defence and Counterclaim on 29th March 2007. They submitted that the 1st Defendant was trying to introduce facts that were well within its knowledge through its application for extension of time to amend its pleadings.On the other hand, the 1 st Defendant contended that the delay in prosecuting its application was occasioned by the previous advocates on record who did not set out the facts it sought to introduce in its Amended Defence. 12. In her ruling on 17th July 2009 regarding the 2nd Defendant’s application dated 27th April 2009in which he had sought to amend his Statement of Defence, Lesiit J stated thus:“Allowing the amendment will not take away any rights from the plaintiffs. The Defendants

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will still need to prove its case on the standard required by law.” 13. From the pleadings on record, the Plaintiffs did not clearly elaborate what rights they had accrued. Just as the said learned judge had observed at the time, this court finds that the amendments sought by the 1st Defendant did not appear to take away any rights that may have been accrued to the Plaintiff, if at all, if the intended amendments herein were allowed. 14. In any event, there is nothing in the law that prevented any party from amending its pleadings after an interlocutory injunction had been granted as parties to the suit would be required to take all necessary action that would assist in the preparation of their cases during the full trial. The court therefore finds that the Plaintiffs did not demonstrate what prejudice or harm that they stood to suffer. 15. While the court noted the 1st Defendant’s submissions that it was upon discovery of an error in the pleadings that the current advocates saw the need to amend its Defence, it was not clear to the court why the 1st Defendant’s applicationthat was filed in 2009 was not prosecuted then. 16. However, amendments should be freely allowed at any stage of the proceedings if it can be established that costs would be adequate to compensate an opposing party for the prejudice that it suffered. In addition, the court may also allow a party to amend its pleadings if the amendment was not effected within the time lines that had been set out by the court. This has been well captured in Order 8 Rule 7 of the Civil Procedure Rules, 2010 which Rules became operative after the application herein was filed. 17. Having considered the pleadings, affidavits and the written submissions by the parties herein, the court found that this was a suitable case for it to exercise its discretion to allow the 1 st Defendant’s application to enable the court arrive at a just determination of the matter herein. Indeed, the 1 st Defendant is entitled under Article 50 of the Constitution of Kenya, 2010, to a fair opportunity to present its case before the court. It is trite law that a party should only be denied an opportunity to ventilate its case only as a very last resort. 18. However, due to the long period it has taken to prosecute the application herein, the 1 st Defendant must be condemned to pay costs to the Plaintiffs for the inconvenience that they have suffered by being set back in their case. It cannot be allowed to go scot free. DISPOSITION 19. Accordingly, the upshot of this court’s ruling is that the 1 st Defendant’s Chamber Summons application dated 22nd September 2009 and filed on 29th September 2009 is hereby allowed in terms of prayers (1) and (2). 20. The 1stDefendant shall file and serve its Amended Defence within fourteen (14) days from the date of the ruling. 21. The Plaintiffs shall file and serve its Reply to Amended Defence within fourteen (14) days from the date of service. 22. The 1stDefendant is hereby directed to pay to the Plaintiffs thrown away costs in the sum of Kshs. 50,000/= within fourteen (14) days from the date of this ruling, failing which the Plaintiffs will be at liberty to seek such further appropriate orders as it would deem fit. 23. Costs shall in be in the cause. 24. It is so ordered.

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DATED and DELIVERED at NAIROBI this 16th day of October 2014 J. KAMAU JUDGE

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