Case ID:162991

Inamol Jesus Berakoetxea & 2 others v Edward Buria & 2 others [2020] eKLR

Case Metadata

Case Number:

Civil Case 457 of 2017

Parties:

Inamol Jesus Berakoetxea,Victor Shiholo Muhandiki & Nazir Ahmed Lone v Edward Buria, John Kamau Wainaina & Magnolia Heights Management

Date Delivered:

07 Jul 2020

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Maureen Akinyi Odero

Citation:

Inamol Jesus Berakoetxea & 2 others v Edward Buria & 2 others [2020] eKLR

Court Division:

Civil

County:

Nairobi

Case Outcome:

Plaintiff application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & TAX DIVISION

CIVIL CASE NO. 457 OF 2017

INAMOL JESUS BERAKOETXEA....................................1

ST

PLAINTIFF

VICTOR SHIHOLO MUHANDIKI.................................2

ND

PLAINTIFF

NAZIR AHMED LONE.....................................................3

RD

PLAINTIFF

VERSUS

EDWARD BURIA...........................................................1

ST

DEFENDANT

JOHN KAMAU WAINAINA.........................................2

ND

DEFENDANT

MAGNOLIA HEIGHTS MANAGEMENT......................3

RD

DEFENDANT

RULING

(1) Before this Court is the Notice of Motion dated

23

rd

May 2018

by which

INAMOL JESUS BERA KOETXEA

(the 1

st

Plaintiff/Applicant),

VICTOR SHIHOLO MUHANDIKI,

the 2

nd

Plaintiff/Applicant and

NAZIR AHMED LONE

(the 3

rd

Plaintiff/Applicant) seek Orders

THAT

:-

“1. The Honourable Court be pleased to grant leave to the Plaintiff/Applicants to amend its Plaint in terms of the attached Draft Amended Plaint annexed hereto.

2. The Draft Amended Plaint be deemed as duly filed and served after payment of the requisite fee.

3. The costs of this Application be provided for.”

(2) The application was premised upon

Sections 258, 259, 260, 284, of the Companies Act 2015, 1A, 3A

of the

Civil Procedure Rules 2010, Article 159

of the

Constitution 2010

and all enabling provisions of law and was supported by the Affidavit of even date sworn by the Director or 1

st

Plaintiff/Applicant.

(3) The Defendant/Respondents namely

EDWARD BURIA

(1

st

Defendant/Respondent),

JOHN KAMAU WAINAINA (

the 2

nd

Defendant/Respondent

)

and

MAGNOGA HEIGHTS MANAGEMENT LTD

(the 3

rd

Defendant/Respondent) filed Grounds of Opposition dated

15

th

May 2019

against Application. The Application was canvassed by way of written submissions. The Plaintiff/Applicants filed their written submissions on

28

th

October 2019

whilst the Defendant/Respondents filed their submissions on

11

th

December 2019

.

BACKGROUND

(4) The Plaintiff/Applicants first moved to Court vide a Notice of Motion application dated

10

th

November 2017

seeking the following inter alia orders

THAT:

-

2. Pending the hearing and determination of this Application, this Honourable Court be pleased to issue an order of injunction, restraining the defendants from holding an Extraordinary General Meeting scheduled on 10/11/2017 at 5 p.m.

3. This Honourable Court be pleased to order the directors of the 3

rd

Defendant to issue a fresh Notice of Extra-Ordinary General Meeting to be convened within 60 days of such court order.

4. The cost of this Application be provided for.”

The court granted Prayer (2) of the Motion ex-parte.

(5) The Plaintiff/Applicants filed another Notice of Motion dated

24

th

November 2017

seeking to amend the first Notice of Motion dated

10

th

November 2017

. The application of

24

th

November 2017

was heard but was dismissed by

Hon Lady Justice Olga Sewe

vide her Ruling dated

23

rd

February 2018

. Thereafter the Plaintiff/Applicants filed this present application seeking to amend their Plaint.

ANALYSIS AND DETERMINATION

(6) I have considered the submissions filed by both parties.

Order 8 Rule 3(1) of the Civil Procedure Rules

provides thus:-

“…..the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.”

And Rule

5(1)

in particular provides that:-

“For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.”

(7) It is generally accepted that amendment of pleadings ought to be freely permitted to enable the court effectively determine the issues in controversy between the parties. In the case of

NYAMODI OCHIENG NYAMOGO –VS- KENYA POSTS & TELECOMMUNICATIONS CORPORATION 2007 eKLR,

it was held:-

“The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between the parties is conducted not on false hypothesis of the facts already claimed but rather on the basis of the true state of facts or relief or remedy which the parties really and finally intend to rely on or to claim.”

(8) Accordingly, if the Court is satisfied that good cause has been shown, it ought to allow an amendment. Indeed, in

Eastern Bakery Vs Castelino [1958] EA 461

, it was held that:-

“..amendment to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side, and that there is no injustice if the other side can be compensated by costs.”

(9) In

ALPHA KNITS LIMITED –VS- KENINDIA ASSURANCE COMPANY LTD & Another [2007] eKLR, Hon Justice Azangalala

(now retired) stated as follows:-

“In my view if the third party is of the view that the proposed amendments will improve the case leave cannot be refused merely because the Defendant is of a contrary view. At this stage it is immaterial that the Defendant may have a water tight answer to the proposed amendments. That is not a consideration at this stage…”

(10) The Defendant/Respondent in their Grounds of Opposition term the Plaintiff’s application an abuse of the Court process. They submit that a similar application seeking to introduce the same amendments was heard and dismissed by the Court. According to the Respondents the present application seeking to amend the Plaint is nothing but a disguised appeal against the Ruling of

Hon Justice Olga Sewe

delivered on

23

rd

February 2018

. They also submit that the proposed amendments seek to introduce a new cause of action and in any event the application has come too late in the day.

(11) I have perused the Ruling delivered by my learned sister

Hon Justice Olga Sewe on 23

rd

February 2018

. Whilst it is true that the Applicants prayer to amend the Notice of Motion dated

10

th

November 2017

was dismissed by the court it is important to note that the court did not declare said amendments as unwarranted or unnecessary. Rather the application was dismissed for two main reasons.

(12) Firstly, the Court found that the initial application was already spent. The court held that:-

“It is manifest therefore, that the initial application was, for all purposes and intents, spent by the time the proposed amendment was made. It is also manifest that the proposed amendment would completely so change the complexion of that application as to convert it to a whole new and fresh applications and is therefore untenable.”

(13) Secondly the Court found that the Notice of Motion dated

24

th

November 2017

was incompetent for falling a foul of

Rule 9

of the

Oaths and statutory Declaration Rules

. On this point the Court found as follows:-

“Accordingly, since the annextures were not properly and procedurally introduced for consideration by the Court in accord with Rule 9 aforementioned, it would follow that the Notice of Motion for amendment would be hollow…”

(14) It is manifest therefore that the application to amend the Notice of Motion dated

10

th

November 2017

was dismissed on technicalities and not due to the insufficiency of the application. Therefore I find no merit in the Respondent’s objection.

(15) The Plaint in this matter was filed on

10

th

November 2017

. To date the Defendants have not filed any Defence to the said suit. Further I note that the hearing of the suit is yet to commence. As such I find that the Defendants stand to suffer no prejudice should the Plaint be amended.

(16) Finally, I allow the Plaintiff/Applicant’s application dated

23

rd

May 2018

in terms of prayers (1) and (2) thereof. Each party to meet its own costs for this application.

Dated in

Nairobi

this

7

th

day of

July 2020

.

…………………………………..

Justice Maureen A. Odero