[2009] KEHC 1690 (KLR)
The court found that the plaintiffs were entitled to amend their reply to the amended defences, as the right to do so was implicit in the parties' consent to amend the plaint and defences. The court held that the time for service of the amended reply had expired, but it had discretion to enlarge time under the Civil...
Source-derived case information.
- Citation
- [2009] KEHC 1690 (KLR)
- Parties
- Plaintiff: Abdul Razak Khalfan (Suing on behalf of The International Air Transport Association “I.A.T.A” ); Plaintiff: Assurance Company Limited; Defendant: Residents Travel Den Ltd.; Defendant: Jimmy Rayani; Defendant: Mrs. Parvez Jimmy Rayani; Defendant: Mrs. Salimah Ameen Pirbhai
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 169 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Leave to Amend Reply and Extension of Time
- Outcome
- application allowed
- Legal Topics
- Amendment of Pleadings, Extension of Time, Reply to Amended Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdul Razak Khalfan (Suing on behalf of The International Air Transport Association “I.A.T.A” )
Plaintiff
Assurance Company Limited
Plaintiff
Residents Travel Den Ltd.
Defendant
Jimmy Rayani
Defendant
Mrs. Parvez Jimmy Rayani
Defendant
Mrs. Salimah Ameen Pirbhai
Defendant
Procedural Posture
Civil Case / Ruling on Application for Leave to Amend Reply and Extension of Time
Legal Issues
- 1 Whether the plaintiffs should be granted leave to amend their reply to the amended defences of the second, third, and fourth defendants.
- 2 Whether the court should enlarge the time within which the plaintiffs may file and serve their amended reply to the amended defences.
- 3 Whether granting the orders sought would cause prejudice or injustice to the defendants/respondents.
Ratio Decidendi
The court found that the plaintiffs were entitled to amend their reply to the amended defences, as the right to do so was implicit in the parties' consent to amend the plaint and defences. The court held that the time for service of the amended reply had expired, but it had discretion to enlarge time under the Civil Procedure Code. The court determined that no prejudice or injustice would be suffered by the defendants if the orders were granted, as the amendments were sought before judgment and the defendants were aware of the plaintiffs' right to reply. The application was therefore allowed, subject to payment of costs by the applicant.
Court Disposition
application allowed
Orders
- Plaintiffs granted leave to amend their reply to the amended defences of the second, third, and fourth defendants.
- Plaintiffs to file and serve the amended reply within 7 days upon payment of court fees.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Case 169 of 2005
ABDUL RAZAK KHALFAN (Suing on behalf
Of The International Air Transport Association“I.A.T.A”).....1ST PLAINTIFF
ASSURANCE COMPANY LIMITED ………………… 2ND PLAINTIFF
VERSUS
RESIDENTS TRAVEL DEN LTD. …..............……………….. 1ST DEFENDANT
JIMMY RAYANI ………………………..................…………….. 2ND DEFENDANT
MRS. PARVEZ JIMMY RAYANI ……………..................…….. 3RD DEFENDANT
MRS. SALIMAH AMEEN PIRBHAI ….................……………. 4TH DEFENDANT
R U L I N G
The application dated 15/12/2008 was filed on behalf of 1st and 2nd plaintiffs under the provisions of Order XLIX Rule 5and Order VIII Rule 17 (1)and (2) Civil Procedure Code, Order VIA Rules 3, 5 and 8 Civil Procedure Code and Section 3A and 95 of Civil Procedure Act, Cap.21. Orders sought are:-
(a)Leave to amend their reply to second, third and fourth defendants’ amended defence;
(b)That time be enlarged within which the plaintiffs may file and serve their amended reply to defences mentioned under (a) above and that the annexed amended defence be deemed to be amended upon payment of the filing fees.
The grounds on which application is brought are stated. That all
parties agreed to amend plaint and defences of the defendants. However, the parties overlooked to include the right of plaintiffs to file an amended reply to the amended defences. The defendants have filed grounds of opposition which I have perused.
The provision is made under Order VIAfor amendment of pleadings. Order 1 (3) where an amended defence is served on a plaintiff if the plaintiff has already filed a reply on that defendant he may amend his reply and the period for service of his reply or amended reply is 14 days after the service on him of the amended defence. This application is therefore allowed under that Order.
It is clear the time of service prescribed has long expired. However, there is provision to extend time under Order 49 Rule 5 where the court is empowered to enlarge time although the application for enlargement is not made until after the expiration of the time allowed.
Upon consideration of the circumstances, it is clear the defendants were aware when consenting to amendment of defence that the plaintiff would have a right to amend reply. Furthermore, it is established principle that court will permit amendments at any time before judgment is pronounced. The applicant relies on the authority of Civil Appeal No. Nai 294 of 2005 – Githiaka vs. Ndiriri decision of which I agree. In the case of Mohi & Machama vs. Kenya Railways & another, Hon. Justice Onyango Otieno (as he then was) said:-
“It is a well settled principle in law that applications for amendments to pleadings before hearing are normally to be granted without much ado if they can be made without injustice to the opposing party …”
The respondents here say they will suffer injustice if orders are granted. I have considered the respondents’ submissions and I do not think there is prejudice that can be suffered by the respondents if the said orders are granted.
I therefore allow the application and order the plaintiff to file amended reply attached within the next 7 days by paying court fees and serving the same within 7 days thereof.
The applicant shall pay costs of this application to the defendant/respondent.
Orders accordingly.
DATED, SIGNED and DELIVERED at Nairobi this 19th day of October 2009.
JOYCE N. KHAMINWA
JUDGE