[2008] KEHC 1974 (KLR)
The court found that the power to grant leave to amend pleadings is intended to enable the determination of the true merits of the case and should be exercised liberally, provided no injustice is caused to the other party. The court held that the applicant's request to amend the originating summons was merited, as...
Source-derived case information.
- Citation
- [2008] KEHC 1974 (KLR)
- Parties
- Plaintiff: Clement Chiuri Kariungi; Defendant: John Kabuku Gachari; Defendant: Michael Kaguamba Gachari
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 19 of 2005
- Procedural Posture
- Civil Case / Ruling on Application to Amend Originating Summons
- Outcome
- application allowed
- Judges
- MM Kasango
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Prejudice to Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clement Chiuri Kariungi
Plaintiff
John Kabuku Gachari
Defendant
Michael Kaguamba Gachari
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Originating Summons
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the originating summons to correct the name of the registered owner.
- 2 Whether the amendment would cause prejudice to the defendants or result in injustice.
- 3 Whether the application for amendment was brought with undue delay.
Ratio Decidendi
The court found that the power to grant leave to amend pleadings is intended to enable the determination of the true merits of the case and should be exercised liberally, provided no injustice is caused to the other party. The court held that the applicant's request to amend the originating summons was merited, as the amendment was necessary to correct an error regarding the registered owner of the property. The court was satisfied that any potential prejudice to the defendants could be compensated by an award of costs, and that the defendants would have an opportunity to respond to the amended pleadings. The application was therefore allowed, with directions for the plaintiff to file and...
Court Disposition
application allowed
Orders
- Leave granted to the plaintiff to file and serve an amended originating summons within 14 days.
- Defendant granted leave to file a further affidavit within 14 days of service.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
Civil Case 19 of 2005 (OS)
CLEMENT CHIURI KARIUNGI ……………………. PLAINTIFF
Versus
JOHN KABUKU GACHARI
MICHAEL KAGUAMBA GACHARI ………….. DEFENDANTS
RULING
The applicant by his application by chamber summons dated 30th May 2007 seeks leave to amend his originating summons. In support of that application, the applicant stated that the amendments were necessitated by the error of his advocate who assumed that the property in question was registered in only one name. That the amendment which is sought would reflect the correct position of the registered owner. The applicant was of the view that the amendment will not lead to prejudice to the defendant. The defendant opposed the application and in so doing argued that the application has been brought after inordinate and inexplicable delay. The defendants were of the view that the amendment would cause prejudice to them. In submission defence counsel further argued that directions of the hearing of the originating summons had been given and therefore an amendment should not be allowed. In the case of KENYATTA NATIONAL HOSPITAL vs KENYA COMMERCIAL BANK LTD & ANOTHER (2003) 2 EA the court set out the principles that should guide a court considering an application for amendment. The holding of that case was;-
“the principles governing the grant of leave to amend pleadings are well settled. The general rule is that the amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other party can be compensated by costs (EASTERN BAKERY vs CASTELIN (1958) EA 461 ; OCHIENG AND OTHERS VS FIRST NATIONAL BANK OF CHICAGO Civil Appeal Number 149 of 1991 followed). It was in the greater interest of justice to breathe life into the plaintiff’s action by allowing the amendment in order to properly constitute the plaintiff. Application allowed.”
In considering an application for amendment the court should bear in mind that the power to allow amendment is intended to determine the true, substantive merits of the case. The amendments should be made timeously. The power to grant leave to amend can be exercised by the court at any stage in the proceedings. Bearing that in mind I have considered the application herein and I do find that the same is merited. The court grants leave to the plaintiff to file and serve an amended originating summons in terms of the ones annexed to the application dated 30th May 2007 within 14 days from this date hereof. The defendant is granted a corresponding leave to file a further affidavit within 14 days of service. The defendant is granted costs of the chamber summons dated 30th May 2007.
DATED AND DELIVERED THIS 25TH DAY OF JUNE 2008
MARY KASANGO
JUDGE