Bottini v Equity Bank Kenya Limited & another (Civil Appeal 61 of 2022)  KEHC 2013 (KLR) (9 March 2023) (Judgment)
Neutral citation:  KEHC 2013 (KLR)
Republic of Kenya
Civil Appeal 61 of 2022
SM Githinji, J
March 9, 2023
Giancarlo Ernesto Bottini
Equity Bank Kenya Limited
Central Bank of Kenya
(Appeal from the whole decision and Ruling and Order made on the 16th day of June 2022 by Hon. Irene Thamara (RM) in Malindi CMCC No. 287 of 2019)
1.This appeal arises from the ruling and orders made on June 16, 2022 by Hon. I.W Thamara (RM) in Malindi CMCC No. 287 of 2019 wherein the magistrate dismissed the appellant’s application seeking to amend the plaint.
2.Aggrieved with the finding, the appellant preferred an appeal based on the following grounds;1.That the learned magistrate erred both in law and in fact in holding that by introducing particulars of negligence the plaintiff will be introducing a new cause of action while in reality, the particulars did not alter the cause of action but rather shade light on it (sic).2.That the learned magistrate erred in holding that intended amendments were likely to cause prejudice to the defendant when would only help court in addressing the cause of action with particulars and clearly (sic).3.That the honourable resident magistrate, misconstrued the applicable principles in decided case cited with the material facts of the present case and set of circumstances thereby denying the plaintiff the very necessary opportunity to set out correct facts giving rise to the cause of action already pleaded hence prejudicing the plaintiff.4.That the learned magistrate failed to appreciate the fact that the cause of action though a tort, it also had elements of breach of contract in that he sought restitution besides damages.5.That the honourable learned magistrate failed to appreciate that a duty of care by the defendant owed to the plaintiffs by the defendant was in tort of negligence and it was only the particulars that were missing which the amendment intended to cure.6.That the learned magistrate erred in saying that the amendments would enable the plaintiff to defeat the provisions of S. 4 (2) of the Limitation of Actions Act when it is clear the suit was in the year 2019, barely one year from when the cause of action arose in 2017.7.Clearly the honourable magistrate misapprehended the facts, the applicable statutory provisions of the law and precedents thereby reaching at a wrong conclusion to the prejudice of the Plaintiff/Appellant.
3.This being a first appeal, this court has a duty to revisit the evidence that was before the trial court, reevaluate and analyze it and come to its own conclusion. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses during the trial and should therefore make due allowance for that. This duty was well stated in Selle & another v Associated Motor Boat Co. Ltd. & others (1968) EA 123 in the following terms:
4.The discretion of this court to interfere with the determination of the trial court also exercising its discretion should be exercised within the confines of the principles set out by Sir Clement De Lestang, VP in Mbogo v Shah 1968 EA 93, where he held as follows: -
5.The appeal was canvassed by way of written submissions. I have considered the grounds on the Memorandum of appeal, submissions as well as the authorities relied on by the parties and the issue arising for determination is;1.Whether the trial court erred in finding that the intended amendments would defeat the provisions of Section 4 (2) of the Limitations of Actions Act?
6.Order 8 rule 3 of the Civil Procedure Rules provides for amendment of pleadings with leave of the court as follows: -
7.Further, Order 8, rule 5 gives the court the general power to amend.
8.For the court to allow the amendment, it has to first look into the intent and purpose of the amendment and whether any prejudice will be occasioned to the other party or parties in dispute and whether such prejudice can be compensated by way of costs.
9.In Institute for Social Accountability & another v Parliament of Kenya & 3 others  eKLR the Court held: -
10.The Court of Appeal outlined the principles for consideration in amendment of pleadings in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited  eKLR as follows: -
11.The legal parameters governing the amendment of pleadings from the above cited decisions can be summed up as follows; that the amendment should not introduce new or inconsistent cause of actions or issues; the amendment should be made timeously; it should not affect any vested interest or accrued legal right and it should not prejudice or cause injustice to the other party.
12.I have evaluated the proposed intended amendments. The appellant wishes to amend the plaint to include the exact date of fraud and particulars of negligence and loss which relate to the main issue in dispute. In my view, these amendments will alter the initial cause of action. At the time of filing of the suit, there was no date indicated on when the alleged fraud took place. In essence then, the amendment to include a date in 2017 clearly goes to the core of section 4 (2) of the Limitation of Actions Act. The upshot of the above is that I find no merit in the appeal and the same is hereby dismissed with no orders as to costs.
RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 9TH DAY OF MARCH, 2023....................................S.M. GITHINJIJUDGEIn the Presence of;1. Ms Vanani for 1st Respondent2. Mogaka Bwongaki and Co are for the Appellant (absent)