[2012] KEHC 3060 (KLR)
The court held that the application to amend the plaint was merited and allowed it, permitting the plaintiffs to enjoin the 2nd, 3rd, 4th, and 5th defendants. However, the court found that the request for injunctive orders against these proposed defendants was premature because they were not yet parties to the suit...
Source-derived case information.
- Citation
- [2012] KEHC 3060 (KLR)
- Parties
- Plaintiff: Dinah Jepchieng Chepyegon; Plaintiff: Rodah Cheptoo; Defendant: Kevin Kiptanui Kimwatan
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 42 of 2011
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application to Amend Plaint and for Injunctive Orders
- Outcome
- Application partially allowed and partially disallowed.
- Legal Topics
- Amendment of Pleadings, Injunctive Relief, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Dinah Jepchieng Chepyegon
Plaintiff
Rodah Cheptoo
Plaintiff
Kevin Kiptanui Kimwatan
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application to Amend Plaint and for Injunctive Orders
Legal Issues
- 1 Whether the plaintiffs should be granted leave to amend the plaint to enjoin additional defendants.
- 2 Whether the plaintiffs are entitled to temporary injunctive orders against the proposed new defendants before they are formally enjoined and served.
Ratio Decidendi
The court held that the application to amend the plaint was merited and allowed it, permitting the plaintiffs to enjoin the 2nd, 3rd, 4th, and 5th defendants. However, the court found that the request for injunctive orders against these proposed defendants was premature because they were not yet parties to the suit and had not been served. The law requires that parties must first be properly enjoined and served before any substantive orders can be made against them. Therefore, the injunctive relief sought against the new defendants was disallowed at this stage. The application thus succeeded in part (amendment allowed) and failed in part (injunction denied as premature).
Court Disposition
Application partially allowed and partially disallowed.
Orders
- Leave granted to amend the plaint to enjoin the 2nd, 3rd, 4th, and 5th defendants.
- Applicants to file and serve the Amended Plaint within fifteen (15) days.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATELDORET
CIVIL CASE 42 OF 2011
DINAH JEPCHIENG CHEPYEGON…….....…….....……….1ST PLAINTIFF
RODAH CHEPTOO…………………………………..……..2ND PLAINTIFF
VERSUS
KEVIN KIPTANUI KIMWATAN…………..…...……………….DEFENDANT
RULING:
The Notice of Motion is brought under Order 8 Rules 3, 5 and 7 and Order 40 Rules 1 & 4 of the Civil Procedure Rules and under Sections1A, 3, 3A and 63 (c) of the Civil Procedure Act.
Counsel stated at the hearing that this Application had been served on all the Respondents but none of them are in attendance.
The court notes that on the 19th November, 2011 the Applicants had obtained temporary injunctive orders as against the 1st Defendant pending the hearing and final determination of the suit, herein.
The Applicants now seek leave of the court to amend the Plaint so as to enjoin the 2nd, 3rd 4th and 5th Defendants.
The Applicants are also seeking for a temporary injunctive order as against the 2nd, 3rd, 4th and 5th Defendants.
Firstly this court will deal with the application to amend the Plaint herein. The application to amend is hereby allowed. The Applicants shall file and serve the Amended Plaint upon all the Defendants herein within fifteen (15) days from the date hereof. The 1st Defendant is at liberty to file an Amended Defence. The 2nd, 3rd, 4th and 5th Defendants shall file their defences within fifteen days after service is effected.
The second issue this court will deal with is the application seeking injunctive orders as against the 2nd, 3rd, 4th and 5th Defendants.
The law requires that when a Plaint is filed, summons must then issue and thereafter service of the Plaint and summons must be effected on the Defendants.
The Applicants are attempting to put the cart before the horse. The Defendants are yet to be enjoined therefore the injunctive orders sought cannot be granted or effected as against parties who are not privy to the proceedings.
The Applicants are advised to first file and serve the Amended Plaint, upon the Defendants. The Applicants can then make the application to the court requesting for the said injunctive orders.
For the reasons stated above, the second leg of the application is disallowed as it is premature.
The application is therefore partially successful and partially unsuccessful.
The costs herein shall be in the cause.
It is so ordered.
Dated and delivered at Eldoret this 20th day of July 2012.
A.MSHILA
JUDGE
Coram: Before: Hon. A Mshila J
CC: Andrew
Counsel for the Applicants: Mr .Kiboi .
Ex-parte.
A.MSHILA
JUDGE