[2005] KEHC 631 (KLR)
The court held that under Order 1 Rule 10(4) of the Civil Procedure Rules, when a defendant is substituted, the plaint must be amended to reflect the new party before any pleadings or documents can be properly filed on behalf of the substituted defendant. The defendant's advocate filed a notice of appointment and a...
Source-derived case information.
- Citation
- [2005] KEHC 631 (KLR)
- Parties
- Plaintiff: Charles Nywesa Omai; Defendant: Kenya Posts and Telecommunications Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2570 of 1998
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; notice of appointment and replying affidavit struck out with costs to plaintiff
- Legal Topics
- Substitution of Parties, Amendment of Pleadings, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Nywesa Omai
Plaintiff
Kenya Posts and Telecommunications Corporation
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the notice of appointment and replying affidavit filed by the proposed new defendant were properly on record before the plaint was amended to reflect the substitution of parties.
- 2 Whether directions under Order 1 Rule 10(4) of the Civil Procedure Rules must be taken before the new defendant can be properly on record.
Ratio Decidendi
The court held that under Order 1 Rule 10(4) of the Civil Procedure Rules, when a defendant is substituted, the plaint must be amended to reflect the new party before any pleadings or documents can be properly filed on behalf of the substituted defendant. The defendant's advocate filed a notice of appointment and a replying affidavit before the plaint was amended and before the necessary directions were sought. The court found these filings to be premature and ordered that they be struck out with costs to the plaintiff. The court emphasized that directions under Order 1 Rule 10(4) should be taken first to enable the correct defendant to come on record.
Court Disposition
preliminary objection upheld; notice of appointment and replying affidavit struck out with costs to plaintiff
Orders
- The notice of appointment and replying affidavit filed by the proposed new defendant are struck out with costs to the plaintiff.
- Directions under Order 1 Rule 10(4) Civil Procedure Rules to be taken before the correct defendant comes on record.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Case 2570 of 1998
CHARLES NYWESA OMAI ……………………………………………….PLAINTIFF
VERSUS
KENYA POSTS AND TELECOMMUNICATIONS
CORPORATION …….................................................................……… DEFENDANT
RULING
1. The plaintiff in this suit raises a Prelimianry objection against the defendant herein being on record.
2. The grounds of such objection being that the parties had conceeded that the former defendant M/s Kenya Post and Telecommunication be substituted (16. 4.05 (Ransely J). Leave to file an amended plaint within 14 days was then given to reflect the substituted defendants being M/s Telkom Kenya Ltd.
3. The advocate for the defendant failed to make amendments to the plaint as requied under order 1 r 10 (4) Civil Procedure Rules by seeking the direction, namely it reads:-
“Where a defendant is added or substituted, the plaint shall unless the court otherwise directs, be amended in such manner as maybe necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the court thinks fit on the original defendant.”
4. The plaintiff advocates now seeks that the notice of apportionment for Telkon and the affidavit be expurged from the records. The only pleading on record should be the plaint.
5. In reply the advocates for the defendant advocates states once the order is made it took effect immediately and as such the defendant is substituted. The only thing that remains is the plaint to be amended
II: Order 1 r 10 Civil procedure Rules
6. My understanding of order 1 r 10 Civil Procedure Rules is that it deals with the issue of the actual parties to a suit where a wrong plaintiff has been sued or the plaintiffs or defendant names can be substituted if it is wrong. This is in order to effectively and completely allow an adjudication on the mattes in question to be settled and determine that is involved in a suit.
7. Sub rule 4 (supra) states where there is leave to substitute a defendant the plaint shall be amended unless the court otherwise directs.
8. It seems that the defendant proceeded immediately to file a notice of appointment of advocates and a replying affidavit to the file instead of waiting for the directions sort by the plaintiff.
9. I would agree and hold that the notice of appointment and replying affidavit for the proposed new defendant was filed prematurely and the same be and is hereby struck out with costs to the plaintiffs.
10. Directions under order 1 r 10 (4) Civil Procedure Rules should be taken up first to enable the correct defendants come on record.
Dated this 27th day of September 2005 at Nairobi.
FRED A. OCHIENG
JUDGE
K.A. Nyachoti & Co. Advocates for the plaintiff
Ibrahim Isaack & Co. Advocates for the defendant