Nova Industries Limited & Another v Ze Yang Yung Limited & 3 others

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL & ADMIRALTY DIVISION HCCC NO. 712 OF 2003 NOVA INDUSTRIES LIMITED & ANOTHER........PLAINTIFF VERSUS ZE YANG YUNG LIMITED................................1ST DEFENDANT ALEX GATUNDU.................................................2ND DEFENDANT KIHARA MUTTU.................................................3 RD DEFENDANT STANDARD CHARTERED BANK LIMITED..4TH DEFENDANT RULING 1. The Notice of Motion dated 9 th October 2015 is for allowing. It is for Leave to re-amend the Plaint dated 16 th May 2003 and is brought pursuant to the Provisions of Order 8 Rule 3(1) and 5((1) of The Civil Procedure Rules. 2. Only the 1st Defendant opposes the Application. 3. The Cause of Action that was originally pleaded is in respect to a Bank and Customer relationship which has gone sour. There was alleged default and Bank set into motion the realization process. This culminated in the sale of the charged property. 4. It is of course true as pointed out by the 1 st Defendant that the cause of action sought to be introduced may appear to be a new Cause. But what is crucial is that the cause of action does not arise out of the same facts or substantially the same facts. This is the essence of Order 8 Rule 3(5):- “(5) An amendment may be allowed under subrule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.” 5. The issues sought to be introduced by the Amendments can be abridged as follows:a) It sets out the particulars of the breaches of Law or Contract that are said to have been committed in the Sale and Transfer of the Property. b) Avers the existence of a Court Order that the Defendants are alleged to have breached in evicting the Plaintiff. 6. As the issues sought to be introduced stem from that Customer/Client relationship between the Plaintiff and the Bank, then the Cause of Action can be said to arise from substantially the same facts as the cause of action already pleaded. The Respondent who opposes the Application chose to do so by way of Grounds of Opposition and may not be able to demonstrate that the amendment sought mutates the entire suit beyond recognition. 7. In addition whilst there is a complaint about the delay in presenting the application for Leave to amend, there is no affidavit evidence to demonstrate the prejudice that the Respondent may suffer if leave is granted. 8. Leave to amend may be freely given and more so when the hearing of a matter has not commenced. Old as this matter is, it is yet to be

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