[2018] KEHC 5895 (KLR)
The court held that the discretion to allow amendments is wide and should be exercised to enable the court to receive all material necessary for a just determination of the dispute. The fact that the hearing date had been fixed did not fetter this discretion, especially as the suit had not commenced by way of...
Source-derived case information.
- Citation
- [2018] KEHC 5895 (KLR)
- Parties
- Plaintiff: Abdulgader Shariff Saleh; Plaintiff: Jarmal Swaleh t/a Jingo Tours & Safaris; Defendant: Southern Credit Banking Corporate Ltd; Defendant: Kevin Karanja t/a Dalali Traders; Defendant: Johnstonemuli t/a Kithemu Auctioneers; Defendant: Lofta Resort Diani Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 245 & 165 of 2010
- Procedural Posture
- Civil Case / Ruling on Application to Amend Plaint
- Outcome
- Application to amend plaint allowed; plaintiff to bear costs of the application.
- Judges
- CA Otieno
- Legal Topics
- Amendment of Pleadings, Judicial Discretion, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdulgader Shariff Saleh
Plaintiff
Jarmal Swaleh t/a Jingo Tours & Safaris
Plaintiff
Southern Credit Banking Corporate Ltd
Defendant
Kevin Karanja t/a Dalali Traders
Defendant
Johnstonemuli t/a Kithemu Auctioneers
Defendant
Lofta Resort Diani Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint after the matter had been fixed for hearing.
- 2 Whether the defendant would suffer prejudice that cannot be compensated by costs if the amendment is allowed.
Ratio Decidendi
The court held that the discretion to allow amendments is wide and should be exercised to enable the court to receive all material necessary for a just determination of the dispute. The fact that the hearing date had been fixed did not fetter this discretion, especially as the suit had not commenced by way of evidence. The defendant did not demonstrate any prejudice that could not be compensated by an award of costs. Therefore, the interests of justice required that the plaintiff be allowed to amend the plaint, subject to bearing the costs of the application due to the late timing and the aborted hearing.
Court Disposition
Application to amend plaint allowed; plaintiff to bear costs of the application.
Orders
- Plaintiff to file and serve the amended plaint within 7 days from the date of the ruling.
- Plaintiff to bear the costs of the application in all events.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 245 OF 2010
Consolidated with
CIVIL CASE NO. 165 OF 2010
1. ABDULGADER SHARIFF SALEH
2. JARMAL SWALEH T/A
JINGO TOURS & SAFARIS.....................................PLAINTIFFS
VERSUS
1. SOUTHERN CREDIT BANKING CORPORATE LTD
2. KEVIN KARANJA T/A DALALI TRADERS
JOHNSTONEMULI T/A KITHEMU AUCTIONEERS
3. LOFTA RESORT DIANI LIMITED...................DEFENDANTS
R U L I N G
1. The principle the court applies when asked to consider anapplication for leave to amend a pleading are now well settled. The discretion is wide and unfettered intended, to facilitate the court to receive all the material parties intend to place before the court so that the dispute is dealt with fully and effectively. InStephen Boro Githua vs Family Finance Building Society & Others [2015] eKLR.The Court of Appeal said:-
“…..We reiterate that where the intended amendments aregeared to place full and clear case before the court so that it is effectively and finally determined on its merits, it ought to be allowed for that is the way justice is done”.
2. In so far as this matter is concerned, there have been previous courtorders allowing amendments and even though the matter had been fixed for hearing before the plaintiff came up with the application to amend, those are not any fetters to the wide discretion given to court to enable it do justice.
3. Having listened to the parties and in particular, Mr. WafulaAdvocate for the defendant, nothing came out as to be able to qualify for dissipating an accrued right to that defendant which cannot be compensated by an award of costs.
4. That being my position and nothing that an amendment can beallowed at any time even on appeal, and being aware that the suit is yet to commence by way of production of evidence, I am persuaded that the interests of justice would be better served by allowing the Application on terms that the plaintiff gets time to amend, files and serves the amended plaint within 7 days from today.
5. However, the application having been brought after the court hadset a date for hearing and having yielded the effect of aborting that hearing as scheduled, I direct that notwithstanding the success by the plaintiff, it shall bear the costs of the application in all events.
Dated and delivered at Mombasa this 26th day of June 2018.
P.J.O. OTIENO
JUDGE