1.Before the court is the 1st Defendant/Applicant’s Notice of Motion dated 26th October 2022 brought under Order 8 Rule 3, 5 & 8 and Order 1 Rule 15 of the Civil Procedure Rules as well as Section 3A of the Civil Procedure Act. The Applicant seeks the following orders: -
2.The Application is based on the grounds set out on its face and supported by the Affidavits sworn on 26th October 2022 by the 1st Defendant Stephen Maina Kimanga and his Advocate, Jonathan Omangi.
3.The 1st Defendant’s advocate avers that it is necessary to amend the 1st Defendant’s Defence filed on 27th December 2011 to include a counterclaim against the Plaintiffs so as to assert his rights in the suit. He claims that it is in the interest of justice that the orders sought be granted.
4.The 1st Defendant in his Affidavit that he and his two co-directors of Fig Tree Hotel Ltd, passed a resolution dated 23rd March 2020 to file a defence and counterclaim on behalf of the intended third party namely “The Board of Directors Fig Tree Hotel Limited”. He contends that it is necessary to do so since Fig Tree Hotel Ltd was at the center of the criminal case, which is the subject of the Plaintiff’s malicious prosecution claim herein. This is because the Plaintiffs were accused of stealing money belonging to the Hotel while employed therein. In his view therefore, amendments and counter-claim by the intended third party will bring this matter to conclusion once and for all. He also avers that the amendment will not occasion any prejudice to the Plaintiffs.
5.The Plaintiffs responded through a Replying Affidavit sworn on 17th January 2023 by Lucy Waithera Mwangi, the 1st Plaintiff herein. The Plaintiffs contend that the orders sought are time barred and an indirect attempt to change the character of the suit after parties have already complied with pre-trial directions and set the matter down for hearing. They argued that the matters pleaded in the proposed amended defence regarding unauthorized diversion of money are based on transactions that occurred in 2007, which is over 16 years ago. In their view therefore, if the application is allowed, they would be greatly prejudiced as it would be unfeasible for them to obtain evidence in that regard.
6.In addition, the Plaintiffs aver that the Amended Statement of Defence purports to 'join' a Third Party irregularly without issuing a third party notice. They alleged that the amendment only seeks to clog and cloud the issues before Court and is a deliberate tactic to delay the proceedings of the main suit.
7.The Application was canvassed by way of oral arguments by counsel for the parties herein. Mr. Omangi for the 1st Defendant/ Applicant submitted that Order 1 and 2 of the Civil Procedure Rules give the court unfettered discretion to add any party to a suit where necessary. He submitted that there is a nexus between the intended interested party and the 1st Defendant hence the reason why it is necessary to bring it on board. Further, he argued that the amendments are necessary since at paragraph 5 of the Plaint, the Plaintiffs claim that they were charged despite there being no evidence linking them to the theft. Further, counsel urged that the delay in the prosecution of this suit has not been attributed to the 1st Defendant and in any event, parties will be at liberty to file any amended pleadings if the order sought is granted.
8.Mr. Githiri for the Plaintiffs reiterated the averments in the Plaintiffs Replying Affidavit in his oral arguments. Particularly, he restated that the inordinate delay of eleven years in bringing the application for amendment has not been explained. Counsel urged the court to note that the 1st Defendant had the records all along, since filing his defence, yet he did not deem it fit to amend the defence to include a counterclaim until now. In his view, the application is for dismissal.
9.In a brief rebuttal, Mr. Omangi admitted that no new document is being introduced as the documents sought to be relied on were filed with the defence. Mr. Omangi also stated that the reference to a third party is a typing error since they seek to bring on board an Interested Party as opposed to a third party.
10.The court has carefully considered the Affidavits in support and in opposition of the application as well as the oral arguments made by counsel for the parties. The only issue that falls for determination is whether the 1st Defendant’s application is merited.
11.The general power to amend pleadings is donated by Section 100 of the Civil Procedure Act which provides that;
12.Order 8 Rule 3 of the Civil Procedure Rules provides as follows regarding amendment of pleadings with leave of court: -
13.Further, Order 8 Rule 5 stipulates that:
14.According to the annexed draft amended Defence marked “JO1”, the 1st Defendant seeks to introduce and/or join a company in which he is a director namely, “The Board of Directors Fig Tree Hotel Limited” as a third party in the suit. He has also annexed the intended third party’s proposed statement of Defence and Counterclaim. Counsel for the 1st Defendant claimed that he seeks to join the said party as an interested party and not a third party. He contended that the reference to a third party was a typographical error but did not amend the instant application to reflect that position. The court therefore has no option but to determine the application as presented before it as this cannot be regarded as a mere technicality of procedure that is curable under Article 159(2) (d) of the Constitution.
15.A third party is normally enjoined to a suit at the instance of a Defendant if the Defendant has a claim that relates to the original suit against such a party. This is done through the procedure set down under Order 1 Rule 15 of the Civil Procedure Rules, which the 1st Defendant herein has duly invoked in his application. Sub-rule 1 of the said provision stipulates that:a.that he is entitled to contribution or indemnity; or
16.If the court is to go by the mandatory requirements of the above provision, which the 1st Defendant invoked, then his attempt to introduce a Third Party without first seeking leave of the court to do so cannot be allowed. Further, even assuming that the third party were to be enjoined to this suit at the instance of the 1st Defendant, it would not be the 1st Defendant’s duty to file on its behalf a Defence and counterclaim against the Plaintiffs as he is seeking to do. That is not what the law of third party proceedings envisages.
17.In addition, whereas this court has the discretion to permit amendments at any stage of the proceedings, it is also the duty of the court to ensure that such amendments do not prejudice other parties in the matter. The 1st Defendant filed his defence over eleven years ago and now that the matter has been set down for hearing, they suddenly seek to introduce a counterclaim against the Plaintiffs through an interested party. He personally avers that the same is based on documents that are already in the court's record, indicating that he has always had access to this information and only recently decided to act on it as an afterthought. To that end, the court agrees with the Plaintiffs that the amendments are being sought in bad faith particularly because the 1st Defendant has not even explained how that escaped him all this while.
18.For the foregoing, the court finds that the orders sought in the 1st Defendant’s application are untenable. The 1st Defendant’s Notice of Motion dated 26th October 2022 lacks merit and is hereby dismissed with no orders as to costs.Orders accordingly.