[2013] KEHC 3671 (KLR)
The court held that the applicant was bound by the provisions of Order 8 (3) & (4) of the Civil Procedure Rules, which require leave of court to amend pleadings or join parties after pleadings have closed. The applicant failed to obtain such leave before filing the amended originating summons and seeking to join...
Source-derived case information.
- Citation
- [2013] KEHC 3671 (KLR)
- Parties
- Plaintiff: Benjamin Wafula Barasa; Defendant: Joseph Nyongesa Buyela; Defendant: Alfred Juma Masinde; Defendant: Phaustine Wafula Masinde; Defendant: Winston G Jondi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 69B of 2012
- Procedural Posture
- Environment and Land Case / Ruling on Preliminary Objection Regarding Amendment and Joinder of Parties
- Outcome
- preliminary objection upheld; amended originating summons struck out
- Legal Topics
- Amendment of Pleadings, Joinder of Parties, Preliminary Objection, Order 8 Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Wafula Barasa
Plaintiff
Joseph Nyongesa Buyela
Defendant
Alfred Juma Masinde
Defendant
Phaustine Wafula Masinde
Defendant
Winston G Jondi
Defendant
Procedural Posture
Environment and Land Case / Ruling on Preliminary Objection Regarding Amendment and Joinder of Parties
Legal Issues
- 1 Whether the applicant could amend the originating summons and join additional parties without leave of the court after pleadings had closed.
- 2 Whether the amended originating summons filed without leave should be struck out.
Ratio Decidendi
The court held that the applicant was bound by the provisions of Order 8 (3) & (4) of the Civil Procedure Rules, which require leave of court to amend pleadings or join parties after pleadings have closed. The applicant failed to obtain such leave before filing the amended originating summons and seeking to join additional parties. Article 159 of the Constitution does not exempt parties from complying with procedural rules regarding amendments and joinder. Consequently, the preliminary objection was upheld and the amended originating summons was struck out.
Court Disposition
preliminary objection upheld; amended originating summons struck out
Orders
- The amended originating summons filed on 18th September 2012 and dated 13th September 2012 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
High Court at Bungoma
Environmental & Land Case 69B of 2012 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
BENJAMIN WAFULA BARASA ………………………………… PLAINTIFF
VERSUS
JOSEPH NYONGESA BUYELA
ALFRED JUMA MASINDE
PHAUSTINE WAFULA MASINDE
WINSTON G JONDI ………..…………………………………. DEFENDANTS
RULING
The 6th Respondent has raised a preliminary objection stating the applicant has not obtained leave to join the 6th respondent as a party to the suit. The 4th respondent through his counsel Mr. Onyando also objected as no leave of the court was obtained to amend the originating summons filed in court on 8th September 2012.
The applicant filed the O.S. on 11th February 2008. The first respondent filed a replying affidavit on 13th March 2008. A memorandum of appearance for all the respondents were filed by the firm of Okile & Co. advocates on 22nd February 2008. Subsequent to these pleadings, the applicant has filed several applications within the suit and replies made to those applications by the respondents through their advocates on record. The pleadings had therefore been closed long ago and any party seeking amendment is bound by the provisions of order 8 (3) & (4) of the Civil Procedure Rules.
Under Order8, parties are required to seek leave the court when pleadings had closed before joining or amending so as to have order in the manner in which cases proceed in court. Article 159 of the Constitution merely discourages suits from being dismissed on technicalities on want of form. If the applicant wishes to add parties to his suit let him follow the laid down procedures. I do find the preliminary objection is merited and therefore order the amended O.S filed in court on 18th September 2012 and dated 13th September 2012 be struck out. I make no order as to costs.
RULING DATED, SIGNED, READand DELIVERED in open court this 11th day of APRIL 2013.
A. OMOLLO
JUDGE.
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