[2006] KEHC 2494 (KLR)
The court found that the proposed amendments to the plaint were necessary for the determination of the real matters in controversy between the parties. The amendments did not introduce a new cause of action but rather provided an alternative claim for relief arising from the same facts as the original plaint. Since...
Source-derived case information.
- Citation
- [2006] KEHC 2494 (KLR)
- Parties
- Plaintiff: CYKA Holdings Limited; Defendant: Johnson Joshua Kinyanjui; Defendant: Vinubhai Virpal Shah; Defendant: Harith Sheth t/a Harith Sheth Advocate
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 118 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Amend Plaint
- Outcome
- application to amend plaint allowed
- Legal Topics
- Amendment of Pleadings, Limitation Periods, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
CYKA Holdings Limited
Plaintiff
Johnson Joshua Kinyanjui
Defendant
Vinubhai Virpal Shah
Defendant
Harith Sheth t/a Harith Sheth Advocate
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend its plaint as sought.
- 2 Whether the proposed amendments are time barred under the limitation laws.
- 3 Whether the amendments introduce a new cause of action.
Ratio Decidendi
The court found that the proposed amendments to the plaint were necessary for the determination of the real matters in controversy between the parties. The amendments did not introduce a new cause of action but rather provided an alternative claim for relief arising from the same facts as the original plaint. Since the original plaint was filed within the limitation period and the amendments did not constitute a new cause of action, the court held that the amendments could not be considered time barred. The court exercised its discretion to allow the amendments, emphasizing that the power to permit amendments is intended to facilitate the just resolution of disputes on their merits.
Court Disposition
application to amend plaint allowed
Orders
- The plaintiff is granted leave to amend its plaint as proposed.
- The amended plaint shall be filed and served within 14 days from the date of the ruling.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Case 118 of 2003
CYKA HOLDINGS LIMITED …………………......................……..………..PLAINTIFF
VERSUS
JOHNSON JOSHUA KINYANJUI ………….........................……….1ST DEFENDANT
VINUBHAI VIRPAL SHAH ………………………....................…..2ND DEFENDANT
HARITH SHETH T/AHARITH SHETH ADVOCATE ….....……..…3RD DEFENDANT
RULING
By its Chamber Summons of the 10. 2.2006 the Plaintiff seeks leave to amend its Plaint in accordance with the proposed amended Plaint annexed to the supporting affidavit in support of the application.
The application is made pursuant to Order VIA Rules 3, 5, 7 and 8 of the Civil Procedure Rules and other provisions.
The power to allow amendments is discretionary and is there to enable the court to be able to determine the real question in controversy between the parties.
The Plaintiff based its case in breach of agreement and now wishes to amend to delete a claim against the 3rd Defendant in negligence and include a claim against all of the Defendants in quasi contract.
The application was opposed. Both Mr. Mugo for the 1st and 2nd Defendant and Mr. Ngunjiri for the 3rd Defendant opposed the application on the ground that the amendments sought were time barred. The Plaint alleges that the Plaintiff did not discover the breach until the 16th June 1997. The Plaint was filed within six years from the alleged breach. This is an alternative claim for relief arising from the same facts. It does not introduce a new cause of action and as such in my view cannot be said to be time barred.
I am of the view that the proposed amended plaint is necessary to determine the real matters in controversy and therefore, allow this application with costs in the cause.
The Amended Plaint to be filed and served within 14 days from today. The Defendants at liberty to file an amended Defence within a further 14 days.
Dated and delivered at Nairobi this 25th day of May, 2006.
P. J. RANSLEY
JUDGE