[2007] KEHC 1419 (KLR)
The court held that the applicant's request for leave to amend the plaint to enjoin a new party was procedurally improper because it was brought under Order VIA rules 3 and 5 instead of the appropriate Order 1 of the Civil Procedure Rules. The correct procedure requires first seeking leave to enjoin the party under...
Source-derived case information.
- Citation
- [2007] KEHC 1419 (KLR)
- Parties
- Plaintiff: Githurai Tinganga Co. Ltd; Defendant: Stephen Kimani
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 6301 of 1990
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application to Amend Plaint and Enjoin Party
- Outcome
- Application struck out for being brought under the wrong provision; costs awarded to respondent.
- Legal Topics
- Joinder of Parties, Amendment of Pleadings, Leave of Court, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Githurai Tinganga Co. Ltd
Plaintiff
Stephen Kimani
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application to Amend Plaint and Enjoin Party
Legal Issues
- 1 Whether leave should be granted to further amend the plaint to enjoin a new party as co-plaintiff.
- 2 Whether the application was brought under the correct provision of the Civil Procedure Rules.
Ratio Decidendi
The court held that the applicant's request for leave to amend the plaint to enjoin a new party was procedurally improper because it was brought under Order VIA rules 3 and 5 instead of the appropriate Order 1 of the Civil Procedure Rules. The correct procedure requires first seeking leave to enjoin the party under Order 1, after which amendment of the plaint may follow as a matter of course. As the application was brought under the wrong provision, it was struck out, and the applicant was directed to bring the appropriate application. Costs were awarded to the respondent.
Court Disposition
Application struck out for being brought under the wrong provision; costs awarded to respondent.
Orders
- The application dated 29 October 2007 is struck out.
- Leave to bring the appropriate application is granted.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 6301 of 1990
RULING
1. Land and Environmental Law Division
2. Civil Practice and Procedure
3. Subject of main suit- land LR3543 Kasarani Nairobi
4. Application 29 October 2007
Leave to further amend plaint to enjoin a new party order VIa r 3 and 5 Civil Procedure Rules.
5. Application opposed: Leave to enjoin party and not amended.
6. Held:
i) Application ought to have filed for leave to enjoying party under order 1 Civil Procedure Rules.
7. Case law.
8. Advocate
N. Marube holding brief for P.M. Wamae & Co. Advocates for the plaintiff/applicant – present
D.P. Kinyanjui & Co. Advocates for the defendant/Respondent - present
GITHURAI TINGANGA CO. LTD..................………………….PLAINTIFF
VERSUS
STEPHEN KIMANI ……………………..…………………..DEFENDANT
I: Civil Practice and Procedure
1. The applicant plaintiff has filed this application dated the 29 October 2001 under Order VIA rules 3 and 5 Civil Procedure Rules for leave “to further amend the plaint to enjoin M/s Registered Trustees of Githurai nursery School as Co-plaintiffs.” “That the annexed awarded plaint be deemed to be duly filed”.
2. This application was opposed by the said respondent. He states that the application should have been brought under Order 1 Civil Procedure Rules to enjoin a party to the suit. There after the plaint would be amended as a matter of course.
3. I would agree with the respondent and would accordingly hold that the application of 29 October 2007 be struck out. Leave to bring appropriate application be duly made. I award costs at the respondents.
Dated this 20th day of November 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
N. Marube holding brief for P.M. Wamae & Co. Advocates for the plaintiff/applicant – present
D.P. Kinyanjui & Co. Advocates for the defendant/Respondent - present