[2023] KEHC 415 (KLR)
The court held that the application for leave to amend the originating summons was justified by the discovery of new assets and was not inordinately delayed. The defendant's objection that the properties do not form part of matrimonial property is a substantive defence to be addressed at trial, not a bar to...
Source-derived case information.
- Citation
- [2023] KEHC 415 (KLR)
- Parties
- Plaintiff: DKG; Defendant: EG
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case E018 of 2021
- Procedural Posture
- Civil Case / Ruling on Application for Leave to Amend Originating Summons
- Outcome
- Application for leave to amend originating summons granted.
- Judges
- EM Muriithi
- Legal Topics
- Matrimonial Property, Amendment of Pleadings, Discovery of Assets, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
DKG
Plaintiff
EG
Defendant
Procedural Posture
Civil Case / Ruling on Application for Leave to Amend Originating Summons
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the originating summons to include newly discovered matrimonial properties.
- 2 Whether the defendant would suffer prejudice if the amendment is allowed.
Ratio Decidendi
The court held that the application for leave to amend the originating summons was justified by the discovery of new assets and was not inordinately delayed. The defendant's objection that the properties do not form part of matrimonial property is a substantive defence to be addressed at trial, not a bar to amendment. The defendant did not demonstrate any prejudice that would be caused by the amendment, as any delay can be compensated by costs. The principle from Eastern Bakery v Castelino applies, and the amendment should be allowed to ensure a fair determination of the dispute on its merits.
Court Disposition
Application for leave to amend originating summons granted.
Orders
- Plaintiff to file amended plaint within 7 days.
- Defendant to file amended defence within 15 days thereafter in accordance with Order 8 Rule 1 and 3 of the Civil Procedure Rules.
Full Case Text
Judgment text and source record
28 paragraphs
DKG v EG (Civil Case E018 of 2021) [2023] KEHC 415 (KLR) (26 January 2023) (Ruling)
Neutral citation: [2023] KEHC 415 (KLR)
Republic of Kenya
In the High Court at Meru
Civil Case E018 of 2021
EM Muriithi, J
January 26, 2023
IN THE MATTER OF SUMMONS FOR DECLARATION OF MATRIMONIAL PROPERTY IN THE MATTER OF MATRIMONIAL PROPERTY ACT, 2013 IN THE MATTER OF MATRIMONIAL CAUSES ACT, 2014 IN THE MATTER OF THE ARTICLES 45, 28, 27, 40, 19 & 20 OF THE CONSTITUTION
Between
DKG
Plaintiff
and
EG
Defendant
Ruling
1. It was held by the court of Appeal for Eastern Africa in Eastern Bakery v Castelino [1958] EA 461 that:-'Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated'.
Chamber summons
2. By dated September 19, 2022, the applicant in this matrimonial property suit seeks leave to amend by specific prayers as follows:-1. That the Honourable Court be pleased to grant leave to the plaintiff/applicant to amend her originating summons in terms of the draft Amended originally summons annexed to add newly discovered matrimonial properties and the same be deemed as duly filed.
2. That the [and] do hereby grant leave to the plaintiff/applicant to file further list of documents.
3. The motion is based principally on the ground No 3 'that the plaintiff has discovered more properties that form part of the matrimonial property in question including P/No 2034, P/No 4286, P/No 1538 and P/No 1977. '
4. By Replying Affidavit dated November 22, 2022, the Defendant has opposed the application for leave to amend on the principal ground set out at Paragraph 3 of the Affidavit 'that the Chamber Summons is incompetent and an afterthought and mere waste of court’s time as the properties listed therein do not form part of matrimonial property,
5. With respect the ground for opposition that the properties sought to be included by amendment are not part of matrimonial property is the Defence that the Defendant shall demonstrate at the hearing upon leave to ammend granted.
6. The Defendant shall have an opportunity to answer to the pleading by way of Amended Defence in accordance with the rules and the application to amend on September 19, 2022 cannot be said to be inordinately delayed since the filing of the OS on July 8, 2021, and the discovery of the new assets is a reasonable ground.
7. Apart from filing affidavit evidence as to the nature of the acquisition of the assets sought to be included the defendant does not demonstrate any prejudice that will be caused by the proposed amendment. The defence shall be head when the hearing commences and a fair determination made upon trial.
8. This is a suitable case for the invocation of the principle in Eastern Bakery v Castelino, Supra. The application for leave to amend shall be granted and costs thereof granted to the respondent for any delay in the hearing and determination occasioned by the grant of leave.
9. The plaintiff shall file the Amended plaint with 7 days and the Defendant shall have 15 days to file the Amended Defence in accordance with order 8 Rule 1 and 3 of theCivil Procedure Rules.
Order accordingly.
DATED AND DELIVERED THIS 26TH DAY OF JANUARY 2023. EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. Ngentu Advocate for Defendant/Applicant.Mr. Thangicia Advocate for the Plaintiff/Respondent.2