[2011] KEHC 3599 (KLR)
The court held that the respondent had made a sufficient case for leave to amend his answer to the petition and cross-petition. The court found that the proposed amendments would not prejudice the petitioner in any material way, as she would have the opportunity to respond to the amended pleadings. Any inconvenience...
Source-derived case information.
- Citation
- [2011] KEHC 3599 (KLR)
- Parties
- Petitioner: CVAAS; Respondent: SVKS
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 15 of 2006
- Procedural Posture
- Divorce Cause / Interlocutory Application for Leave to Amend Answer and Cross Petition
- Outcome
- application allowed
- Judges
- LK Kimaru
- Legal Topics
- Amendment of Pleadings, Matrimonial Causes, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
CVAAS
Petitioner
SVKS
Respondent
Procedural Posture
Divorce Cause / Interlocutory Application for Leave to Amend Answer and Cross Petition
Legal Issues
- 1 Whether the respondent should be granted leave to amend his answer to the petition and cross-petition before trial.
- 2 Whether the proposed amendments would prejudice or oppress the petitioner.
Ratio Decidendi
The court held that the respondent had made a sufficient case for leave to amend his answer to the petition and cross-petition. The court found that the proposed amendments would not prejudice the petitioner in any material way, as she would have the opportunity to respond to the amended pleadings. Any inconvenience suffered by the petitioner, such as her counsel's attendance at the hearing, could be adequately compensated by an award of costs. The court applied the established principle that amendments before trial should be freely granted unless they cause injustice that cannot be compensated by costs. Accordingly, the court granted the respondent leave to amend his answer and...
Court Disposition
application allowed
Orders
- The respondent is granted leave to amend his answer to the petition and cross-petition in terms of the draft annexed to the affidavit in support of the application.
- The amended answer to the petition and cross-petition shall be filed and served within fourteen (14) days of the date of the ruling.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
DIVORCE CAUSE NO.15 OF 2006
CVAAS……………...........……..PETITIONER
VERSUS
SVKS.…..…………………………….……………RESPONDENT
R U L I N G
The respondent filed an application pursuant to the provisions of Rule 14of the Matrimonial Causes Act and “all the enabling provisions of the law” seeking the leave of this court to be allowed to amend his answer to the petition and cross-petition filed herein in terms of the draft amended answer to the petition and cross-petition annexed to the application. The respondent further prayed that the draft amended answer to the petition and cross-petition be deemed as duly filed and served on the parties. The application is supported by the annexed affidavit of the respondent. The application is opposed. The petitioner filed a replying affidavit in opposition to the application.
Prior to the hearing of the application, Counsel for both parties filed written submissions in support of their respective clients’ opposing positions. At the hearing of the application, I heard oral submissions made by Mrs. Thongori for the respondent and by Mr. Osmond for the petitioner. The issue for determination by this court is whether the respondent made a case to entitle this court grant the application to amend his answer to the petition and his cross-petition. As a general rule, this court will freely allow a party to amend his pleadings before trial unless it is established that such proposed amendments will prejudice and oppress the opposing party. As was held by Ringera J (as he was then) in Macharia vs Guardian Bank Kenya Limited [2003] KLR 271 at page 274:
“The law is well settled that amendments sought before trial should be freely granted if they are necessary to put the facts in dispute between the parties before the court for a proper adjudication of the matter and if there would be no injustice to the adverse party. In the latter regard, it is well established that there can be no injustice if the prejudice to the adverse party can be compensated by an order of costs.”
In the present application, it was evident in court that the issues that are of concern to the petitioner in the proposed amendments can be adequately addressed when the petitioner is given an opportunity to respond to the pleadings contained in the proposed amendments. This court is of the view that the petitioner will not be prejudiced in any manner by the proposed amendments other than in regard to the fact that her counsel has been compelled to attend court during the hearing of this application. In that regard, the petitioner can adequately be compensated by an award of costs.
In the premises therefore, the respondent is granted leave to amend his answer to the petition and cross-petition in terms of the draft amended answer to the petition and cross-petition annexed to the affidavit in support of the application. The said amended answer to the petition and cross-petition shall be filed and served within fourteen (14) days of today’s date. The petitioner shall be at liberty to file a response to the said amended pleadings within fourteen (14) days after service. The respondent shall pay to the petitioner the costs of the application in any event.
DATED AT NAIROBI THIS 11TH DAY OF FEBRUARY, 2011
L. KIMARU
JUDGE