[2005] KEHC 1514 (KLR)
The court exercised its discretion to allow the amendment of the plaint because the application was unopposed, the suit had not yet been set down for hearing, and the amendment was necessary for the determination of the issues between the parties. The court found that there was no prejudice to the respondent, who...
Source-derived case information.
- Citation
- [2005] KEHC 1514 (KLR)
- Parties
- Plaintiff: Fuelex Kenya Limited; Defendant: Kennedy Titus Omelepu Omasete t/a Kenwill Freighters
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 275 of 2000
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Leave to Amend Plaint
- Outcome
- application allowed
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Court Discretion, Unopposed Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fuelex Kenya Limited
Plaintiff
Kennedy Titus Omelepu Omasete t/a Kenwill Freighters
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Leave to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend its plaint as per the draft annexed.
- 2 Whether the court should exercise its discretion to allow amendment at this stage of proceedings.
Ratio Decidendi
The court exercised its discretion to allow the amendment of the plaint because the application was unopposed, the suit had not yet been set down for hearing, and the amendment was necessary for the determination of the issues between the parties. The court found that there was no prejudice to the respondent, who had been served but did not respond or appear. The court therefore granted leave to the plaintiff to amend its plaint and ordered that the amended plaint be filed within 14 days and served in accordance with the Civil Procedure Act. Costs were ordered to be in the cause.
Court Disposition
application allowed
Orders
- Leave is granted to the plaintiff to amend its plaint as per the draft annexed.
- The amended plaint to be filed within 14 days from the date hereof.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET Civil Case 275 of 2000
FUELEX KENYA LIMITED ……………..…………..... PLAINTIFF/APPLICANT -VERSUS
KENNEDY TITUS OMELEPU OMASETE t/a KENWILL FREIGHTERS ……………….….…... DEFENDANTS/RESPONDENT
RULING
This is a Notice of Motion dated 1st April 2004 purported to have been brought under Order VIA Rules 3 and 5 of the Civil Procedure Rules and section 3 and 3A of the Civil Procedure Act (Cap.21). It seeks for orders that –
1. Leave be granted to the plaintiff to amend its plaint dated 4th December 2000 and filed on 5th December 2000 as per the draft amended plaint annexed.
2. The draft amended plaint annexed be deemed to be duly filed upon payment of the requisite court fees.
3. The costs of the application be provided for and ordered to be costs in the cause.
The application has grounds on its face and is supported by the affidavit of Edwin Muriu, the General Manager of the plaintiff/applicant, sworn on 1st April 2004.
The application is not opposed as no documents were filed by the respondents in reply to the application. On the hearing date for the application nobody appeared for the respondent. The application was served on the respondent’s counsel Messrs. Ocharo Kebira and Company Advocates.
This court has powers under Order VIA rule 3 of the Civil Procedure Rules to allow a party to amend its pleadings at any stage of the proceedings. The suit has not yet been set down for hearing. The application has not been opposed. The amendment is necessary for determination of issues between the parties.
I allow the application and order that the plaintiff/applicant files the amended plaint within 14 days from the date hereof. The applicant should serve the filed amended plaint in accordance with the Civil Procedure Act (Cap.21). Costs will be in the cause.
Dated and delivered at Eldoret this 12th day of July 2005.
George Dulu
Ag. Judge
In the Presence of: Mr. Kariuki for plaintiff/applicant