[2007] KEHC 944 (KLR)
The court found that the proposed amendments were not made in bad faith nor after inordinate delay that would prejudice the defendants beyond compensation in costs. The amendments sought to address claims arising as a direct consequence of the injuries suffered by the plaintiff, including loss of earning capacity,...
Source-derived case information.
- Citation
- [2007] KEHC 944 (KLR)
- Parties
- Plaintiff: Elizaphan N. Nyamu; Defendant: Ndaikwa Mwagoro; Defendant: S. M. Sumra Transporter
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 45 of 1997
- Procedural Posture
- Civil Case / Ruling on Application to Amend Plaint
- Outcome
- Application to amend plaint allowed.
- Legal Topics
- Amendment of Pleadings, Delay in Application, Prejudice to Parties, Loss of Earning Capacity
- 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
Elizaphan N. Nyamu
Plaintiff
Ndaikwa Mwagoro
Defendant
S. M. Sumra Transporter
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint to include additional claims for loss of earning capacity, house help salary, and costs of medical treatment abroad.
- 2 Whether the delay of ten years in seeking amendment constitutes an abuse of court process or causes prejudice to the defendants.
Ratio Decidendi
The court found that the proposed amendments were not made in bad faith nor after inordinate delay that would prejudice the defendants beyond compensation in costs. The amendments sought to address claims arising as a direct consequence of the injuries suffered by the plaintiff, including loss of earning capacity, employment of a helper, and costs of specialized treatment. The court held that the amendments were necessary for determining the real questions in controversy and that the defendants could be compensated by costs. Therefore, the application to amend the plaint was allowed, with directions for filing and serving the amended plaint and corresponding leave for the defendants to...
Court Disposition
Application to amend plaint allowed.
Orders
- Plaintiff to file and serve amended plaint within fifteen days.
- Defendants granted leave to amend their defence within fifteen days of service of amended plaint.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Case 45 of 1997
ELIZAPHAN N. NYAMU ………………...............….…. PLAINTIFF
- V E R S U S -
NDAIKWA MWAGORO
S. M. SUMRA TRANSPORTER ……....………… DEFENDANTS
RULING
The plaintiff’s Chamber Summons dated 2nd April 2007 seeks leave of this court to amend the plaint. It is based on the grounds that as a result of the accident injuries the plaintiff suffered he lost his job with Kenya/Nordic Co-operative Development Programme, and has had to employ a house help. He also requires to travel to Germany for treatment and fitting of a prosthesis. The amendment is therefore intended to include a claim for loss of earning and/or future earning capacity, the house helps salary and the costs of air travel medication and accommodation in Germany.
Counsel for the plaintiff argued that the medical bill as of 1997 when this suit was filed was Sh. 988,012/- but it has since gone up. Though the suit is partly heard he said that the intended amendment will not cause the defendants any prejudice as they can always call evidence in rebuttal.
The defendants are not amused by the application. They argued through their counsel that this application being brought after inordinate delay of ten years is therefore an abuse of the process of court.
Order 6 Rule 5 of the Civil Procedure Rules empowers the court to allow amendments to the pleadings at any stage of the proceedings as long as the amendments satisfy the two conditions of (a) not working injustice to the other side and (b) being necessary for determining the real question in controversy between the parties.
In the words of the Court of Appeal:
“The guiding principle in applications for leave to amend is that all amendments should be freely allowed and at any stage of the proceedings provided that the amendment or joinder as the case may be will not result in prejudice or injustice to the other party which cannot be properly compensated for in costs. (See Bedco Ltd –Vs- Alfa Laval Co. Ltd [1994] 4 ALLER 464” –(Central Bank of Kenya Ltd –Vs- Trust Bank Ltd & Others.
In Civil Appeal No. 222 of 1998 (C.A.) the Court of Appeal stated:
“... likewise mere delay is not a ground for declining to grant leave. It must be such delay that is likely to prejudice the opposite party beyond monetary compensation in costs.”
Even if these conditions are satisfied amendments which are made mala fides or are intended to introduce an inconsistent cause of action will be rejected.
In this case I do not agree with counsel for the defendants that the proposed amendments are made in bad faith or after inordinate delay. What I understand the plaintiff to claim is that as a sequel of the injuries suffered he now requires some specialized treatment and a prosthesis, he has had to employ a helper and has suffered loss of earning or earning capacity. Whether or not he will prove all those claims is another matter.
In the circumstances I allow this application and order the plaintiff to file and serve his amended plaint within fifteen days. The defendants have corresponding leave to amend their defence if they so wish within fifteen days of service of the amended plaint. The defendants shall have the costs of this application in any event.
DATED and delivered this 18th day of December 2007.
D.K. MARAGA
JUDGE