[2005] KEHC 2173 (KLR)
The court found that the plaintiff's failure to file a signed amended plaint was due to a genuine mistake by the advocate's clerk, and there was no evidence to controvert this assertion. Since the defendant did not oppose the application, the court accepted the plaintiff's explanation as sufficient reason to...
Source-derived case information.
- Citation
- [2005] KEHC 2173 (KLR)
- Parties
- Plaintiff: Fidelity Commercial Bank; Defendant: Worldin Tours & Travel Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 91 of 1998
- Procedural Posture
- Civil Case / Ruling on Application to Restore Leave and Extend Time to File Amended Plaint
- Outcome
- Application allowed. Leave to amend plaint restored and time for filing amended plaint extended.
- Judges
- MM Kasango
- Legal Topics
- Amendment of Pleadings, Extension of Time, Inherent Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fidelity Commercial Bank
Plaintiff
Worldin Tours & Travel Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Restore Leave and Extend Time to File Amended Plaint
Legal Issues
- 1 Whether the court should restore leave to amend the plaint previously granted to the plaintiff.
- 2 Whether the court should extend the time for the plaintiff to file its amended plaint after the previous amended plaint was struck out for being unsigned.
Ratio Decidendi
The court found that the plaintiff's failure to file a signed amended plaint was due to a genuine mistake by the advocate's clerk, and there was no evidence to controvert this assertion. Since the defendant did not oppose the application, the court accepted the plaintiff's explanation as sufficient reason to exercise its discretion under Order 49 Rule 5 of the Civil Procedure Rules. The court restored the leave to amend the plaint and extended the time for filing the amended plaint, holding that the interests of justice required allowing the plaintiff to correct the procedural error.
Court Disposition
Application allowed. Leave to amend plaint restored and time for filing amended plaint extended.
Orders
- Leave to amend plaint granted on 4th November 2003 is restored.
- Time for filing the amended plaint is extended to within 7 days from the date of the ruling.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL DIVISION, MILIMANI
CIVIL CASE NUMBER 91 OF 1998
FIDELITY COMMERCIAL BANK…….. ……..PLAINTIFF
VERSUS
WORLDIN TOURS & TRAVEL
LIMITED……………………………………...1ST DEFENDANT
R U L I N G
By a notice of motion brought under sections 3A and 100 of the Civil Procedure Act, Order 6A Rules 3 and 5, order 49 Rule 5 of the Civil Procedure Rules seeks the following orders: - ·
That the Honourable court does exercise its inherent jurisdiction and issue orders restoring leave to amend the plaint granted on 4th November 2003.
That the Honourable court be pleased to extend the time by which the plaintiff is deemed to have filed its amended plaint pursuant to restoration of the order of 4th November 2003. ·
That the plaintiff be allowed to file its amended plaint within the extended time or as the court may specify.The plaintiff was granted leave to amend its plaint, when that amended plaint was filed, on 14th January 2004, the same was unsigned.
The defendant made an application for the striking out of that amended plaint and the court by it’s ruling, delivered on 22nd October 2004, struck out that amended plaint.
When the present application came up before me for extension of time to file an amended plaint the defendant had not filed its papers in opposition. On being denied an adjournment the defendant did not respond to the plaintiff’s application.
It follows therefore that the plaintiff’s assertion in support of the application is unchallenged.
The affidavit in support of the application states that the plaintiff’s advocate’s clerk, without checking filed the unsigned amended plaint. The said filing was said to have been by mistake.
Since there is nothing to controvert that assertion I find that this is sufficient reason for the court to exercise its discretion under Order 49 rule 5 and extend time for filing the amended plaint. The court grants the following orders: -
(1) That the court does hereby restore leave to amend plaint granted on 4th November 2003 and does extend the time for filing such amended plaint to be within 7 days from todays date hereof.
(2) The costs of the application dated 2nd December 2004 will be the defendants in any event.
Dated and delivered this 25th day of April 2005.
MARY KASANGO
JUDGE
Read and delivered at Nairobi by Azangalala J, this 25th day of
April 2005.
F AZANGALALA
JUDGE