[2019] KEHC 7139 (KLR)
The court held that the amended plaint, having been filed after interlocutory judgment and without leave of court, could not be considered and ought to be struck out. However, recognizing that the plaintiff may have had good reason for seeking the amendment, the court found it just and fair not to proceed to...
Source-derived case information.
- Citation
- [2019] KEHC 7139 (KLR)
- Parties
- Plaintiff: William Barua Nyambu (Suing as Legal Administrator of the Estate of Kahunda Kono Karisa-Deceased); Defendant: Emmanuel Kazungu Chai; Defendant: Hassan Katana Charo
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 32 of 2016
- Procedural Posture
- Civil Suit / Interlocutory Order on Amended Plaint and Interlocutory Judgment
- Outcome
- File remitted to Malindi High Court for further procedural steps by plaintiff before judgment.
- Legal Topics
- Amendment of Pleadings, Interlocutory Judgment, Leave of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Barua Nyambu (Suing as Legal Administrator of the Estate of Kahunda Kono Karisa-Deceased)
Plaintiff
Emmanuel Kazungu Chai
Defendant
Hassan Katana Charo
Defendant
Procedural Posture
Civil Suit / Interlocutory Order on Amended Plaint and Interlocutory Judgment
Legal Issues
- 1 Whether the amended plaint filed after interlocutory judgment and without leave of court is valid.
- 2 Whether the court should proceed to write judgment based on the original plaint.
Ratio Decidendi
The court held that the amended plaint, having been filed after interlocutory judgment and without leave of court, could not be considered and ought to be struck out. However, recognizing that the plaintiff may have had good reason for seeking the amendment, the court found it just and fair not to proceed to judgment based on the original plaint. Instead, the matter was remitted to the Malindi High Court for the plaintiff to take appropriate procedural steps before judgment could be written.
Court Disposition
File remitted to Malindi High Court for further procedural steps by plaintiff before judgment.
Orders
- The amended plaint is struck out as it was filed without leave after interlocutory judgment.
- No judgment will be written based on the original plaint at this stage.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CIVIL SUIT NO. 32 0F 2016
WILLIAM BARUA NYAMBU
(Suing as Legal Administrator of the Estate ofKahunda Kono Karisa-Deceased).....PLAINTIFF
VERSUS
EMMANUEL KAZUNGU CHAI..........................................................................1ST DEFENDANT
HASSAN KATANA CHARO................................................................................2ND DEFENDANT
ORDER
1. The Plaintiff, William Barua Nyambu (suing at the Legal Administrator of the Estate of Kahunda Kono Karisa-Deceased filed an Amended Plaint on 12th April, 2018. This was done long after interlocutory judgment was entered for the Plaintiff on 3rd October, 2017 and without the leave of the court. The amendment was carried out after the pleadings had closed and the leave of the court was required before the amendment could be effected–see Order 8 of the Civil Procedure Rules, 2010 on amendment of pleadings.
2. It is also noted that the interlocutory judgment was entered on the strength of the original plaint. As matters stand the amended plaint cannot be considered and it ought to be struck out. However, the Plaintiff must have had good reason for amending the plaint. In the circumstances, I find that it is only just and fair not to write a judgment based on the original plaint.
3. Consequently, this file is returned to Malindi High Court to enable the Plaintiff take the necessary steps before the judgment can be written by the Judge at Malindi High Court.
Dated and Signed at Nairobi this 24th day of April, 2019
W. Korir,
Judge of the High Court
Dated, Countersigned and Delivered at Malindi this 23rd day of May, 2019
R. Nyakundi,
Judge of the High Court