[2011] KEHC 649 (KLR)
The court held that amendments to pleadings are generally allowed before judgment, especially where the hearing is still at an early stage and only one witness has testified. The proposed amendment, which seeks to introduce a counter-claim, would not cause undue hardship or prejudice to the plaintiff, as the parties...
Source-derived case information.
- Citation
- [2011] KEHC 649 (KLR)
- Parties
- Plaintiff: Bajaber Limited; Defendant: Kenya Revenue Authority
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 315 of 2000
- Procedural Posture
- Civil Case / Ruling on Application to Amend Defence and Include Counter Claim
- Outcome
- Application to amend defence and include counter-claim allowed.
- Legal Topics
- Amendment of Pleadings, Counter Claims, Prejudice and Fair Hearing, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bajaber Limited
Plaintiff
Kenya Revenue Authority
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Defence and Include Counter Claim
Legal Issues
- 1 Whether the defendant should be granted leave to amend its statement of defence to include a counter-claim.
- 2 Whether the proposed amendment would prejudice the plaintiff or cause undue hardship.
- 3 Whether the amendment is consistent with the general rules of civil procedure regarding pleadings.
Ratio Decidendi
The court held that amendments to pleadings are generally allowed before judgment, especially where the hearing is still at an early stage and only one witness has testified. The proposed amendment, which seeks to introduce a counter-claim, would not cause undue hardship or prejudice to the plaintiff, as the parties would have ample opportunity to respond. The amendment would facilitate the determination of all issues in controversy and promote closure of the suit. The court therefore allowed the application to amend the defence and include the counter-claim, with directions for filing and service of the amended pleadings and replies.
Court Disposition
Application to amend defence and include counter-claim allowed.
Orders
- Defendant to file and serve its Amended Defence and counter-claim within 14 days of the ruling date.
- Plaintiff at liberty to file and serve reply within 14 days of service of the amended defence and counter-claim.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 315 OF 2000
BAJABER LIMITED.....................................................PLAINTIFF
=VERSUS=
KENYA REVENUE AUTHORITY......................................DEFENDANT
RULING
By this application dated 13th October 2010 the Defendant seeks orders to allow it to amend its statement of defence dated 14th August 200j0 to include a counter-claim as against the Plaintiff. Annexed to the application is the intended Amended Defence and counter-claim. Mr. Githaiga Advocate argued the application on behalf of the Applicant which Mr. Asige strenuously objected to the same on behalf of the Plaintiff.
I have given very careful consideration to the arguments advanced both for and against this application. Unlike the earlier application dated 7th December 2009 in which the Defendants sought to enjoin a third-party to the suit, in this present application the prayer is merely to amend the defence to include a counter-claim. The parties to the suit will remain the same. As a general rule of civil law amendments to pleadings are allowable at any time before judgement is entered in the suit. Again as a general rule such amendments will not ordinarily prejudice the other party as they will have ample opportunity to respond accordingly. This hearing is still in its infancy. Only one witness has testified. I have looked at the proposed amendments and counter-claim. What they seek to do is to amalgamate all the prayers sought to enable closure to be obtained at the end of the suit. This I believe will not cause any undue hardship and/or prejudice to the Plaintiffs. The essence of the suit remains the same that is the question of Title or ownership of the suit land. As such I do allow this present application in terms of prayer (2) thereof. The Defendant to file and serve its Amended Defence and counter-claim within 14 days of todays date. The Plaintiffs are at liberty to file and serve their reply within 14 days of such service and the Defendants to have 14 days to file and serve their reply to any defence to the counter-claim. Thereafter since only one witness has testified in this case the matter to proceed for hearing before the Land Division of the High Court. Costs in the cause.
Dated and Delivered in Mombasa this 18th day of November 2011.
M. ODERO
JUDGE
In the presence of:
Mr. Asige for Plaintiff
No appearance by Defendant