[2007] KEHC 2455 (KLR)
The court held that, although the applications for leave to amend and to strike out paragraphs of the amended plaint were intertwined, their objects were different and not entirely based on the same facts. It would be impractical and confusing to hear them together. The court emphasized that the general rule is to...
Source-derived case information.
- Citation
- [2007] KEHC 2455 (KLR)
- Parties
- Plaintiff: Christopher Lebo & 331 Others; Defendant: The Kenya Power & Lighting Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 74 of 2003
- Procedural Posture
- Civil Suit / Interlocutory Application Ruling on Sequence of Hearing Amendment and Striking Out Applications
- Outcome
- Plaintiffs' application for leave to amend plaint to be heard first; Defendant's application to strike out stood over generally.
- Legal Topics
- Amendment of Pleadings, Striking Out of Pleadings, Particulars of Special Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Lebo & 331 Others
Plaintiff
The Kenya Power & Lighting Co. Ltd.
Defendant
Procedural Posture
Civil Suit / Interlocutory Application Ruling on Sequence of Hearing Amendment and Striking Out Applications
Legal Issues
- 1 Should the application for leave to amend the plaint be heard before the application to strike out paragraphs of the amended plaint?
- 2 What is the appropriate sequence for hearing intertwined interlocutory applications where amendment and striking out are sought?
- 3 Are the grounds for striking out sufficient to warrant precedence over an application for amendment?
Ratio Decidendi
The court held that, although the applications for leave to amend and to strike out paragraphs of the amended plaint were intertwined, their objects were different and not entirely based on the same facts. It would be impractical and confusing to hear them together. The court emphasized that the general rule is to allow amendments to pleadings to ensure that the real issues between the parties are determined. Since the Defendant's application to strike out was premised on alleged imprecision and insufficiency in the Plaintiffs' pleadings, it was fair and just to first consider whether the Plaintiffs should be allowed to amend. If the amendment was allowed, the Defendant could then decide...
Court Disposition
Plaintiffs' application for leave to amend plaint to be heard first; Defendant's application to strike out stood over generally.
Orders
- The Plaintiffs' application for leave to amend the plaint shall be heard first.
- The Defendant is granted leave to file and serve its Replying Affidavit and grounds of opposition within thirty (30) days.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET
Civil Suit 74 of 2003
CHRISTOPHER LEBO & 331 OTHERS …..…………….. PLAINTIFFS
VERSUS
THE KENYA POWER & LIGHTING CO. LTD. ...…......... DEFENDANT
R U L I N G
The suit herein is still pending and has yet to be set down for trial. There have been numerous interlocutory applications and which have been determined.
On 12th January, 2007, the Defendant made an application to have various paragraphs of the Amended Plaint struck out. Some of the grounds for the application are:-
(i) That the averments contained in their amended plaint are imprecise and insufficient making the Defendant unable to know exactly know what case it has to meet at the trial.
(ii) That the Plaintiffs seek special damages yet they have failed to explicitly plead and particularize each damage to a standard required by law.
The application was finally set down for hearing for two (2) days, 17th and 18th July, 2007. On the 6th June, 2007 the Plaintiffs filed an application for stay of proceedings and pending the determination of an application for leave to amend their plaint. The Plaintiffs also sought the leave of the Court to amend their plaint. The Plaintiffs had their application certified as urgent and the matter also fixed for hearing today.
The application for leave to amend was only served on the Defendant’s Counsel’s office in the course of yesterday when he had already left to come to Eldoret for today’s hearing.
The Plaintiffs wish to have their application heard first. After consideration of the application, Mr. Kajwang for the Defendant has urged this Court to have the two applications heard together as they raise intertwined issues. He proposes that the application to strike out be treated as a reply to the application to amend.
I have considered the submissions by Counsels. I have also considered the purpose for amendment of pleadings and the principles of amendment of pleadings. I have also considered the principles to be considered when entertaining an application to strike out a plaint under the provisions of Order VI, Rules 8 and 13 (1) of the Civil Procedure Rules. I have also perused the two applications herein.
I do not think that it would be appropriate for the two applications to be heard together and to treat one as an answer to the other. Yes the issues may be intertwined but the objects of each application are different and are not entirely based on the same facts. It would be impractical and confusing to have the two applications heard together.
I hereby direct that the two applications be heard separately. Which should take precedence and be heard and determined first? It is this Court’s view that a Court of law ought to be always inclined to sustain legal suits so that they are finally heard on their merits and preferably upon full trial. The Plaintiff’s application came first and is for striking out of several of the paragraphs in the plaint. The second application intends to amend the plaint most likely a reaction due to the intended striking out application.
As a general rule, leave to amend ought to enable the real questions in issue between the parties to be raised on the pleadings. The Defendant’s reason for the application to strike out is, inter alia, that some averments are imprecise and insufficient for the Defendant to plead to. If this is the case, I think it would be fair and just that the application for leave be considered first. If it is allowed the Defendant will decide whether to prosecute its application or not. If it is not allowed, then the application to strike out may proceed to hearing.
I therefore do hereby order and direct that the application by the Plaintiffs for leave to amend the plaint be heard first. The Defendant is given leave to file and serve its Replying Affidavit and grounds of opposition, if any within the next thirty (30) days. I will now give a hearing date for the said application in the new term. The Defendant’s application dated 12th January, 2007 is stood over generally. The Plaintiffs shall pay the Defendant’s Counsel’s costs of travel and subsistence. The Defendant supply the particulars to the Plaintiffs by the next hearing date for this Court’s directions.
DATED AND DELIVERED AT ELDORET ON THIS 17TH DAY OF JULY, 2007.
M. K. IBRAHIM
JUDGE
Delivered in the presence of:
Mr. Kajwang with Mr. Gumbo for the Defendant
Mr. Gicheru also holding brief for Mr. Buluma & Mr. Mutei for the Plaintiffs