[2009] KEHC 147 (KLR)
The court found that while the amended plaint served on the defendants was not properly endorsed as required by Order VIA Rule 7(1) of the Civil Procedure Rules, the copy filed in court was properly endorsed. The plaintiff conceded the omission and sought leave to rectify the error. The court determined that the...
Source-derived case information.
- Citation
- [2009] KEHC 147 (KLR)
- Parties
- Plaintiff: Fredrick Wanjala Masibo (suing as the legal representative of the estate of the late Silas Juma 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 65 of 2005
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection Regarding Amended Plaint Endorsement
- Outcome
- Preliminary objection dismissed; plaintiff to serve properly endorsed amended plaints; costs awarded to defendants.
- Legal Topics
- Amendment of Pleadings, Endorsement Requirements, Preliminary Objection, Service of Documents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Wanjala Masibo (suing as the legal representative of the estate of the late Silas Juma 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 as required by Order VIA Rule 7(1) of the Civil Procedure Rules is fatal to the suit.
- 2 Whether the court should strike out the amended plaint for non-compliance with endorsement requirements.
- 3 Whether the plaintiff should be granted leave to serve properly endorsed amended plaints.
Ratio Decidendi
The court found that while the amended plaint served on the defendants was not properly endorsed as required by Order VIA Rule 7(1) of the Civil Procedure Rules, the copy filed in court was properly endorsed. The plaintiff conceded the omission and sought leave to rectify the error. The court determined that the omission was a genuine mistake and not intended to mislead or prejudice the defendants. Given that pleadings had not closed and the amendment did not require leave, the court exercised its discretion to decline striking out the plaint. Instead, the court ordered the plaintiff to serve the defendants with properly endorsed amended plaints within seven days and awarded costs to the...
Court Disposition
Preliminary objection dismissed; plaintiff to serve properly endorsed amended plaints; costs awarded to defendants.
Orders
- Plaintiff to serve the defendants with the correct amended plaint similar to the one filed in court within 7 days of the date of this order.
- Plaintiff to pay costs of this suit.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL SUIT 65 OF 2005
FREDRICK WANJALA MASIBO.......................................................................................PLAINTIFF.
(SUING AS THE LEGAL REPRESENTATIVE OF THE ESTATE OF THE LATE SILAS JUMA MASIBO)
VERSUS
HENRY KIPKORIR ROTICH )
ELDORET EXPRESS CO. LTD. )
DAVID NYAKUNDI OMARI ).......................................................................................DEFENDANT.
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. 65/2005, 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 suit. This order applies with equal force to Kitale High Court Civil case No. 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