[2009] KEHC 54 (KLR)
The court found that while Order VIA Rule 7(1) of the Civil Procedure Rules is couched in mandatory terms, the omission in this case was a genuine mistake, as the court file contained a properly endorsed amended plaint. The error only affected the copies served on the defendants. The court exercised its discretion,...
Source-derived case information.
- Citation
- [2009] KEHC 54 (KLR)
- Parties
- Plaintiff: Fredrick Wanjala Masibo; Defendant: Henry Kipkorir Rotich; Defendant: Eldoret Express Co. Ltd.; Defendant: David Nyakundi Omari
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 68 of 2005
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection Regarding Amended Plaint Endorsement
- Outcome
- preliminary objection dismissed; leave granted to serve properly endorsed amended plaint; costs awarded to defendant
- Legal Topics
- Amendment of Pleadings, Endorsement Requirements, Preliminary Objection, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Wanjala Masibo
Plaintiff
Henry Kipkorir Rotich
Defendant
Eldoret Express Co. Ltd.
Defendant
David Nyakundi Omari
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection Regarding Amended Plaint Endorsement
Legal Issues
- 1 Whether failure to endorse the amended plaint served on the defendants with the date of amendment and relevant rule/order is fatal to the plaint.
- 2 Whether the court should strike out the amended plaint for non-compliance with Order VIA Rule 7(1) of the Civil Procedure Rules.
- 3 Whether the court should exercise discretion to allow service of a properly endorsed amended plaint.
Ratio Decidendi
The court found that while Order VIA Rule 7(1) of the Civil Procedure Rules is couched in mandatory terms, the omission in this case was a genuine mistake, as the court file contained a properly endorsed amended plaint. The error only affected the copies served on the defendants. The court exercised its discretion, declined to strike out the plaint, and instead ordered the plaintiff to serve properly endorsed amended plaints within seven days. The court also ordered the plaintiff to pay the costs of the application. This decision was extended to related cases with similar procedural defects.
Court Disposition
preliminary objection dismissed; leave granted to serve properly endorsed amended plaint; costs awarded to defendant
Orders
- Plaintiff to serve the defendant with the correct amended plaint, properly endorsed, within 7 days of this order.
- Plaintiff to pay costs of this application.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE CIVIL SUIT 68 OF 2005
FREDRICK WANJALA MASIBO ::::::::::::::::::: PLAINTIFF.
VERSUS
HENRY KIPKORIR ROTICH )
ELDORET EXPRESS CO. LTD. ) :::::::::::::::: DEFENDANT.
DAVID NYAKUNDI OMARI )
R U L I N G.
By an oral application under order VIA Rule 8 of the Civil procedure Rules Mr. Ingosi for the 1st defendant, raised a preliminary objection by a notice dated 17th March, 2006. The notice is to the effect that the amended plaint herein be struck out in that order VIA Rule 7 (1) of the Civil Procedure Rules was not complied with. That the amended plaint was not endorsed with the date of the amendment and either the date of the order allowing the amendment or the number of the rule in pursuance of which the amendment was made.
Service of the amended plaint was effected on 20th March, 2006. The first defendant applied for a certified copy of the same. The copy has some endorsement after the words
“Drawn by”
“Pursuant to the provisions of order VIA
Rules 7(1) of the Civil Procedure Rules.”
But the original plaint served on 20th March, 2006 does not bear the endorsement as enjoined by order VIA Rule 7 (1).
It is significant that the pleadings had not closed. The pleadings were supposed to close on 21st March, 2006. The amendment did not require leave. But the plaintiff ought to have endorsed the same with the date of the amendment and either the date of the order allowing the amendment or the number of the rule in pursuance of which the amendment was made.
It was further contended that the same omission was made in the Kitale H.C.C No. 65/2005, KITALE HCCC NO. 67/2005 and Kitale HCCC No. 68/2005. I was urged to order that the finding and holding herein do apply to Kitale HCCC No. 64/2005, 65/2005 and Kitale H.C.C.C. No. 67/2005.
The plaintiff opposed the application. It was contended on the plaintiff’s behalf, by Mr. Gekonga Advocates, that the plaint dated 17th March, 2006 has an endorsement as required by order VIA Rule 7 (1) of the Civil Procedure Rules. However, the plaint served on the 1st and 2nd defendants have no such endorsement. He owned up to the mistake. He sought the courts discretion to grant leave to serve proper copies.
Order VIA Rule 1 of the Civil Procedure Code provides:-
“Every pleading and other document amended under this Order shall be endorsed with the date of the amendment and either the date of the order allowing the amendment or, if no order has been made, the number of the rule in pursuance of which the amendment was made.”
It is clear to me that order VIA Rule 7(1) is couched in mandatory terms. It is equally clear to me that the pleadings in the court file are properly endorsed as enjoined by order VIA Rule 7 (1) of the Civil Procedure Rules.
It is conceded by the plaintiff that only the documents served contravene the provisions of Order VIA Rule 7(1) aforesaid.
By reason of the foregoing the mistake seems to me, to be genuine. Accordingly, I decline to strike out the plaint. I order that the plaintiff do serve the defendant with the correct amended plaint similar to the one filed in court within 7 days of the date of this order. I also order the plaintiff to pay costs of this application. This order applies with equal force to Kitale High Court Civil case No. 64/2005, 65/2005, No. 67 of 2005 and No. 68 of 2005.
Dated and delivered at Kitale this 3rd day of February, 2009.
N.R.O. OMBIJA.
JUDGE.
Ms. Kendagor for Plaintiff.
Mr. Kiarie for 1st defendant.
Mr. Kimani for 3rd defendant