Automated Summary
Key Facts
RSW International INC and AECOM Africa (Pty) Limited sought leave to amend their pleadings to include a claim for unjust enrichment against Kenya Electricity Transmission Company Limited, based on services provided under agreements between 2015-2016. The Defendant opposed the amendment, arguing it was time-barred (six-year limitation period) and introduced a new cause of action under restitution law. The Court ruled the amendment permissible under Order 8, rules 3 and 5 of the Civil Procedure Rules, noting it arose from the same factual basis as existing claims and did not prejudice the Defendant, who was already on notice of the issue. The amendment was granted with the Plaintiffs bearing the application costs.
Transaction Type
Project management and construction supervision services agreement
Issues
- The court was required to determine if the Plaintiffs' application for leave to amend their pleadings under Order 8, Rule 3 of the Civil Procedure Rules satisfied the necessary criteria for granting such leave, including the necessity for a just determination and potential prejudice to the Defendant.
- The second issue involved assessing whether the Plaintiffs' proposed claim for unjust enrichment, based on the law of restitution, was time-barred under the six-year limitation period, as the Defendant argued the claim was introduced after an unreasonable delay following the 2016 breach of contract.
Holdings
The court allowed the Plaintiffs' application to amend their pleadings to include a claim for unjust enrichment. The amendment was permitted because the claim was already raised in the Amended Reply to Defence, the Defendant was on notice, and the claim arose from the same contractual facts as the existing breach of contract cause of action. The court emphasized that amendments should be freely allowed unless they are made in bad faith or would cause prejudice not compensable by costs. The Defendant's opposition based on delay and limitation was rejected as insufficient to justify denial of the amendment.
Remedies
- Prayer 2 is allowed.
- Prayer 1 is allowed.
- The Plaintiff shall bear the costs of the Application.
- Prayer 3 is allowed.
Legal Principles
- The court emphasized that amendments to pleadings should be freely allowed unless they would cause prejudice to the opposing party that cannot be compensated by costs. This principle was central to the court's determination that the proposed amendment did not occasion prejudice beyond monetary compensation.
- The Defendant argued the Plaintiffs were estopped from pursuing the amendment due to unreasonable delay in filing the claim for unjust enrichment. The court rejected this, noting the claim arose from the same facts as the existing cause of action and the Defendant was already on notice of the issue.
Precedent Name
- Central Kenya Ltd v Trust Bank Ltd
- Jobling v Firearms Licensing Board
Cited Statute
Civil Procedure Rules 2010
Judge Name
Aleem Visram
Passage Text
- 18. Further, having read the proposed amendment, it is evident that the said claim arises out of the same cause of action, and is based on the same facts already pleaded before the Court concerning the contractual dispute. In this sense, I am persuaded that Plaintiff is not introducing a new cause of action after the period of limitation, but rather, pleading a new relief, based on the same cause of action, in the alternative, to the present relief, and is clarifying the basis of the relief it seeks from the Court.
- "The court's approach in dealing with amendments has always been that an application for amendment should be allowed unless the application to amend is mala fides or it will prejudice the other party. The practical rule adopted seems to be that amendments will always be allowed unless the application to amend is mala fides or unless such amendment would cause an injustice to the other side which cannot be compensated by costs... The court is inclined to grant the amendment where it is made in good faith and no prejudice will be caused to the other party."
- "Likewise, mere delay is not a ground for declining to grant leave. It must be such delay as is likely to prejudice the opposite party beyond monetary compensation in costs... The policy of the law is that amendments to pleadings are to be freely allowed unless by allowing them the opposite side would be prejudiced or suffer injustice which cannot properly be compensated for in costs."
Damages / Relief Type
- Claim for restitution (unjust enrichment) allowed as an alternative relief.
- Plaintiff ordered to bear the costs of the Application.