[2005] KEHC 594 (KLR)
The court found that the delay in filing and serving the amended plaint was due to an honest and common office mistake by the plaintiff's advocates in calculating the time after leave to amend was granted. The court emphasized that parties should not be denied justice on the basis of technicalities, especially where...
Source-derived case information.
- Citation
- [2005] KEHC 594 (KLR)
- Parties
- Plaintiff: Daniel K. Kariithi; Defendant: Bamburi Cement
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 428 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Extend Time for Lodging and Serving Amended Plaint
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Amendment of Pleadings, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel K. Kariithi
Plaintiff
Bamburi Cement
Defendant
Procedural Posture
Civil Case / Ruling on Application to Extend Time for Lodging and Serving Amended Plaint
Legal Issues
- 1 Whether the court should grant an extension of time for the plaintiff to lodge and serve the amended plaint.
- 2 Whether the delay in filing and serving the amended plaint was excusable.
Ratio Decidendi
The court found that the delay in filing and serving the amended plaint was due to an honest and common office mistake by the plaintiff's advocates in calculating the time after leave to amend was granted. The court emphasized that parties should not be denied justice on the basis of technicalities, especially where no prejudice would be occasioned to the defendant. Since the leave to amend had already been granted and the failure to file and serve within time was inadvertent, the court exercised its discretion to allow the application and grant the orders sought, ensuring that the matter proceeds on its merits.
Court Disposition
application allowed
Orders
- Time for lodging and serving the amended plaint is extended as prayed.
- The amended plaint filed on 13/1/2005 is deemed to have been served within time.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Case 428 of 2002
DANIEL K. KARIITHI ……………………………….....………………PLAINTIFF
VERSUS
BAMBURI CEMENT ………………………………..…………….DEFENDANT
R U L I N G
Notice of Motion dated 3/8/05 seeks orders to extend time for Applicant to lodge and serve the amended plaint and that the amended plaint filed on 13/1/2005 be deemed to have been served within time.
The delay in acting in time was due to the honest mistake by Plaintiff’s advocates in calculating time within which the same was to be filed after leave was granted. The application is opposed on the ground that the application is incompetent and no proper ground is advanced to warrant granting orders sought.
I have perused the application and have considered the arguments of counsel. Parties should not be blocked in their pursuit of justice on technicalities. I do not see any prejudice that can be occasioned to defendant by granting the orders sought. The leave to amend was granted by court and it is by inadvertence, that the advocates failed to file and serve the papers in time. This is a common office mistake.
Upon consideration of the above, I allow the application and grant orders prayed with costs.
Delivered and dated at Mombasa this 11th day of October 2005.
J. KHAMINWA
J U D G E
11/10/05
Khaminwa, J
Jason – Court Clerk
Mr. Kibara
No Appearance for Ghalia
Ruling read in their presence.
KHAMINWA, J