[2017] KEHC 963 (KLR)
The court found that although the plaintiff had taken steps by filing and serving the Amended Plaint shortly before the application for dismissal, the amendment was effected outside the 14-day period prescribed by Order 8 Rule 6 of the Civil Procedure Rules. The plaintiff did not obtain an extension of time nor did...
Source-derived case information.
- Citation
- [2017] KEHC 963 (KLR)
- Parties
- Plaintiff: Diocese of Kitui Registered Trustees; Defendant: Timothy Karungu Karanja; Defendant: Dry Associates Limited; Defendant: Insteel Limited; Defendant: Investment Advice Line Limited; Defendant: Fusion Capital Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 48 of 2014
- Procedural Posture
- Civil Suit / Ruling on Application to Dismiss for Want of Prosecution and Validity of Amended Plaint
- Outcome
- Application to dismiss suit for want of prosecution rejected; Amended Plaint struck out for being filed out of time; costs awarded to 2nd defendant.
- Legal Topics
- Dismissal for Want of Prosecution, Amendment of Pleadings, Leave of Court, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Diocese of Kitui Registered Trustees
Plaintiff
Timothy Karungu Karanja
Defendant
Dry Associates Limited
Defendant
Insteel Limited
Defendant
Investment Advice Line Limited
Defendant
Fusion Capital Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Dismiss for Want of Prosecution and Validity of Amended Plaint
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution.
- 2 Whether the Amended Plaint filed by the plaintiff was validly on record given the lapse of time since leave to amend was granted.
- 3 Whether the plaintiff was entitled to amend the plaint outside the 14-day period prescribed by Order 8 Rule 6 of the Civil Procedure Rules.
Ratio Decidendi
The court found that although the plaintiff had taken steps by filing and serving the Amended Plaint shortly before the application for dismissal, the amendment was effected outside the 14-day period prescribed by Order 8 Rule 6 of the Civil Procedure Rules. The plaintiff did not obtain an extension of time nor did the court specify a longer period for amendment. Consequently, the leave to amend had lapsed, and the Amended Plaint was filed without valid leave of the court. Therefore, the Amended Plaint was struck out, and the application to dismiss the suit for want of prosecution was rejected as steps had been taken in the proceedings.
Court Disposition
Application to dismiss suit for want of prosecution rejected; Amended Plaint struck out for being filed out of time; costs awarded to 2nd defendant.
Orders
- The application dated 4th May 2017 to dismiss the suit for want of prosecution is rejected.
- The Amended Plaint filed by the plaintiff is struck out for being filed out of time without leave of court.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL AND TAX DIVISION
CIVIL SUIT NO. 48 OF 2014
DIOCESE OF KITUI REGISTERED TRUSTEES.........................PLAINTIFF
VERSUS
TIMOTHY KARUNGU KARANJA.....................................1ST DEFENDANT
DRY ASSOCIATES LIMITED...........................................2ND DEFENDANT
INSTEEL LIMITED............................................................3RD DEFENDANT
INVESTMENT ADVICE LINE LIMITED............................4TH DEFENDANT
FUSION CAPITAL LIMITED..............................................5TH DEFENDANT
RULING NO.2
1. The 2nd defendant requested that the suit be dismissed for want of prosecution. It was the applicant’s case that the plaintiff had not taken steps to prosecute the suit for a period of over 1 year and 7 months.
2. The application is dated 4th May 2017, and it reveals, inter alia, that on 25th April 2017, the plaintiff filed an Amended Plaint.
3. As the Amended Plaint was filed only a few days before the application was filed to dismiss the suit for want of prosecution, I find that the application was not well founded.
4. The filing of the Amended Plaint on 25th April 2017, and the service of the said Plaint upon the applicant on 26th April 2017 constituted steps which had been taken in the proceedings.
5. Therefore, I reject the application to dismiss the suit for want of prosecution.
6. However, it is also crystal clear that the plaintiff relied upon an order made on 29th September 2015, to effect an amendment to the plaint in April 2017.
7. That would mean that the Plaint was amended after the lapse of about 19 months from the date when the court granted leave for the amendment to be effected.
8. Pursuant to Order 8 rule 6 of the Civil Procedure Rules a pleading should be amended within 14 days of the court granting leave for such amendment, unless the court would have specified a duration within which the amendment may be made.
9. In this case, the plaintiff has not shown this court, any order which allowed it a specified duration for amending the Plaint. It therefore follows that the Plaint ought to have been amended within 14 days from the date when the court granted leave to amend.
10. In the absence of an order which allowed the plaintiff the period within which it amended the Plaint, and because the plaintiff had neither sought not obtained an extension of time within which to amend the Plaint, it follows that the Amended Plaint was filed without the leave of the court.
11. Order 8 Rule 6 of the Civil Procedure Rules categorically states that the order granting leave to amend shall cease to have effect at the end of 14 days from the date it was made, unless the court had specified a different period within which the party could make the amendment.
12. The plaintiff has not shown that it was allowed more than 14 days to make the amendment. Therefore, the order granting leave to the plaintiff to amend the plaint had lapsed long before the Plaint was amended.
13. Therefore the Amended Plaint cannot be allowed to remain on record: It is struck out.
14. The plaintiff shall pay to the 2nd defendant the costs of the application dated 4th May 2017.
DATED, SIGNED and DELIVERED at NAIROBI this13th dayof December2017.
FRED A. OCHIENG
JUDGE
Ruling read in open court in the presence of
Mrs. Koech for the Plaintiff
No appearance for the 1st Defendant
Mueke for the 2nd Defendant
Miss Matata for Kabora for the 3rd Defendant
No appearance for the 5th Defendant
Collins Odhiambo – Court clerk.