1.This is a ruling in respect of a notice of motion dated January 10, 2023 in which the Defendant/Applicant seeks the following orders: -1.That leave be granted to the Applicant/Defendant to amend its Defence and counter-claim.2.That the annexed draft amended defence and counter claim and the accompanying verifying affidavit marked as “SCL 1” be deemed as duly filed upon grant of prayer (1) and payment of the requisite filing fees.3.That pursuant to prayer (2) being granted, the Applicant/Defendant be allowed to file further witness and list of documents.4.That pursuant to prayer (2) being granted, the Respondent/Plaintiff be allowed to amend their plaint and file further documents in a bid to comply with order 11 of the Civil Procedure Rules if need be.5.That the cost of this application be in the cause.
2.The Applicant contends that there is need to bring all issues for determination before the court for adjudication. The Applicant states that the Applicant’s defence and counter-claim did not capture the entire claim which the court is to make a determination on and that therefore there is need to amend the defence and counter-claim to bring on board what was missing to avoid a situation where there will be need to file fresh and separate suits.
3.The Applicant’s application was opposed by the Plaintiff/Respondent based on grounds of opposition dated January 30, 2023. The Respondent contends that the application for amendment is being brought too late in the day; that the amendment cannot be used to reward a party who is in breach of its contractual obligations; that a court cannot re-write a contract for the parties and that the Applicant has moved to court with unclean hands.
4.The parties put in written submissions in respect of the application. I have gone through the Applicant’s application as well as the opposition to the same by the Respondent. I have also gone through the submissions by the parties. The only issue for determination is whether the Applicant has made a case for grant of leave to amend the defence and counter-claim.
5.There are a number of decisions from the superior courts on grounds which amendments to pleadings can be allowed. However, there is the case of Elijah Kipngeno Arap Bii vs Kenya Commercial Bank Limited (2013) eKLR which captures the grounds well. The Court of Appeal in that case sated as follows: -
6.In the case of Central Kenya Limited vs Trust Bank Limited (2000) 2 EA 365, the Court of Appeal stated as follows:-
7.It is in light of the above principles that I will decide the application herein. The defence and counter-claim in this case were filed on September 23, 2019. The application for amendment was made in January2013. This is a period of over 3 years. The delay notwithstanding, the court has to ensure that the amendments are not brought in bad faith; will not prejudice the opposite party; will not introduce a new cause of action and will not deny the opposite party to rely on limitation period.
8.In the instant case, there have been attempts to negotiate a settlement. The main suit and counter-claim are based on breach of contract. Both parties are seeking damages out of the aborted contracts. The amendment sought by the Applicant is to plead the special damages which it submits it suffered as a result of the alleged breach. There is nothing new being introduced which will alter the original cause of action. The amendment will not prejudice the Respondent in any way.
9.This suit has not started being heard. The delay of about slightly three years in seeking amendment can be attributed to the attempts to negotiate a settlement in this matter. The law on special damages is that they have to be pleaded before being proved. It is therefore necessary that the special damages be pleaded and the only way they can be placed before the court is through amendment to the defence and counter-claim. I therefore find that leave should be granted to the Applicant to amend the defence and counter-claim. I consequently grant the Applicant leave to amend the defence and counterclaim. The amended defence and counter-claim shall be filed within fourteen days from the date hereof. The costs of this application shall be in the cause.
It is so ordered.