[2004] KEHC 1913 (KLR)
The court found that although there had been significant delay in the prosecution of the suit and in seeking the amendment, both parties contributed to the delay. The court held that no prejudice would be occasioned to the plaintiffs by allowing the amendment to the defence, including the counter-claim. The...
Source-derived case information.
- Citation
- [2004] KEHC 1913 (KLR)
- Parties
- Plaintiff: Abdulhamis Adahmed Salyani; Plaintiff: Abdulmajid Ahmed Salyani; Plaintiff: Ayub Ahmed Salyani; Plaintiff: Abdulhalim Ahmed Salyani; Defendant: Rukiyabhai Mohamed Saleh
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 692 of 1997
- Procedural Posture
- Civil Suit / Ruling on Application to Amend Defence
- Outcome
- Application to amend defence allowed.
- Legal Topics
- Amendment of Pleadings, Delay in Prosecution, Counter Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdulhamis Adahmed Salyani
Plaintiff
Abdulmajid Ahmed Salyani
Plaintiff
Ayub Ahmed Salyani
Plaintiff
Abdulhalim Ahmed Salyani
Plaintiff
Rukiyabhai Mohamed Saleh
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Amend Defence
Legal Issues
- 1 Whether the defendant should be granted leave to amend her defence including a counter-claim.
- 2 Whether the delay in prosecuting the suit or seeking amendment justifies refusal of the application.
Ratio Decidendi
The court found that although there had been significant delay in the prosecution of the suit and in seeking the amendment, both parties contributed to the delay. The court held that no prejudice would be occasioned to the plaintiffs by allowing the amendment to the defence, including the counter-claim. The overriding principle is that amendments should be allowed to enable the real issues in controversy to be determined, provided no injustice is caused to the other party. Accordingly, the application to amend the defence was allowed, with directions for filing the amended defence and reply within specified timelines.
Court Disposition
Application to amend defence allowed.
Orders
- The defendant is granted leave to file an amended defence within 7 days from the date of the ruling.
- The plaintiff shall file reply and defence to counter-claim within 14 days of service.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT MOMBASACIVIL SUIT NO. 692 OF 1997
1. ABDULHAMIS ADAHMED SALYANI
2. ABDULMAJID AHMED SALYANI
3. AYUB AHMED SALYANI
4. ABDULHALIM AHMED SALYANI……………….PLAINTIFFS
=V E R S U S=
RUKIYABHAI MOHAMED SALEH……………………DEFENDANT
R U L I N G
The Defendant prays that she be given leave to amend her defence. The Plaint was filed on 27/1/94. Up to recently 2003 very little activity has taken place. On 26/5/2003 Defendant appointed fresh advocates who immediately sought order to transfer the suit to lower court which was resisted by the Plaintiff. The Plaintiff has never brought this suit to hearing for the last 10 years. He is resisting the application to amend the defence which was filed on 17/7/1997 which includes a counter-claim. Amendments are normally allowed at any time of the pleadings.
In this case there has been much delay occasioned by both parties. I do not see any prejudice that would be occasioned by the proposed amendment. The application is allowed. The Amended Defence shall be filed within the next 7 days from to-day. The Plaintiff shall file reply and defence to counter-claim within 14 days of service. Costs in the cause.
Dated at Mombasa this 26th day of February, 2004.
JOYCE KHAMINWA
J U D G E
26/2/04
Khaminwa, J.
Chege – Clerk
Ruling read in presence of Mr. Odiaga – Defendant’s Advocate
Mr. Nyalwala – for Plaintiffs