[2004] KEHC 113 (KLR)
The court held that the plaintiffs are entitled, subject to leave, to amend their pleadings at any stage before judgment. The preliminary objection raised by the defendants was found to be premature, as it sought to preempt the court's discretion to allow amendments. The court found no prejudice would be occasioned...
Source-derived case information.
- Citation
- [2004] KEHC 113 (KLR)
- Parties
- Plaintiff: Grace Wangui Mburu; Plaintiff: Peter Muguti Kahunya; Defendant: Peter Mburu Nguri; Defendant: Godfrey Nganga Nyoike; Defendant: Hosea Muthama Mwika; Defendant: Karagira Self Help Mixed Group; Defendant: Joseph Nganga Kanyukii t/a Excellent Auctioneer
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1133 of 2003
- Procedural Posture
- Civil Suit / Ruling on Application for Leave to Amend Plaint and Preliminary Objection
- Outcome
- Plaintiffs granted leave to amend plaint; defendants' preliminary objection struck out; each party to bear own costs.
- Legal Topics
- Amendment of Pleadings, Preliminary Objection, Res Judicata, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Wangui Mburu
Plaintiff
Peter Muguti Kahunya
Plaintiff
Peter Mburu Nguri
Defendant
Godfrey Nganga Nyoike
Defendant
Hosea Muthama Mwika
Defendant
Karagira Self Help Mixed Group
Defendant
Joseph Nganga Kanyukii t/a Excellent Auctioneer
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Leave to Amend Plaint and Preliminary Objection
Legal Issues
- 1 Whether the plaintiffs should be granted leave to amend their amended plaint before judgment.
- 2 Whether the defendants' preliminary objection on points of law, including res judicata and alleged defects in the suit, should be determined prior to the amendment application.
Ratio Decidendi
The court held that the plaintiffs are entitled, subject to leave, to amend their pleadings at any stage before judgment. The preliminary objection raised by the defendants was found to be premature, as it sought to preempt the court's discretion to allow amendments. The court found no prejudice would be occasioned to the defendants by allowing the amendment at this stage. Accordingly, the court granted the plaintiffs leave to amend their amended plaint and struck out the defendants' preliminary objection as prematurely raised. Each party was ordered to bear its own costs for the application and the preliminary objection.
Court Disposition
Plaintiffs granted leave to amend plaint; defendants' preliminary objection struck out; each party to bear own costs.
Orders
- Chamber Summons application dated 14th June 2004 allowed in terms of prayers a) and b).
- Defendants' Preliminary Objection dated 30th July 2004 struck out as prematurely raised.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA AT NAIROBI (MILIMANI LAW COURTS)
CIVIL SUIT 1133 OF 2003
GRACE WANGUI MBURU …………………................………………..1ST PLAINTIFF
PETER MUGUTI KAHUNYA ……………................………………….2ND PLAINTIFF
VERSUS
PETER MBURU NGURI ………………………..............…………..1ST DEFENDANT
GODFREY NGANGA NYOIKE………………….............…………2ND DEFENDANT
HOSEA MUTHAMA MWIKA …………………..............………….3RD DEFENDANT
KARAGIRA SELF HELP MIXED GROUP………............……….4TH DEFENDANT
JOSEPH NGANGA KANYUKII
T/A EXCELLENT AUCTIONEER …......................PROPOSED 5TH DEFENDANT
RULING
The plaintiffs/Applicants have by a Chamber Summons application dated the 14th June 2004 moved the court, on the grounds stated therein supported by the affidavit of the second plaintiff/applicant made on the 14th June 2004, for leave to amend their Amended plaint filed on the 17th December 2003 to which application the Defendants/Respondents have filed a Notice of Preliminary Objection dated the 30th July 2004.
At the commencement of the hearing of the Preliminary Objection, Mr. P.N. Mugo for the Plaintiffs/Applicants, citing various rules of the Civil Procedure Rules, argued that the objection has been raised prematurely as the Plaintiffs are, subject to leave of the court, entitled to amend their pleadings at any stage before judgment.
Mr. Rumba Kinuthia, for the Defendants/Respondents, contended that the Preliminary Objection raised points of law including that the suit itself as presently filed is fatally and incurably defective and that it is, in any event, res judicata, which points of law must be determined before the application is heard.
I have considered the application in light of the respective submissions of learned counsel as well as the law.
The statutory provisions and the case law and commentaries on amendment of pleadings is well considered in the decision of this court in Kuloba v. Oduol [2001] 1 E.A. 101 and I do not find it necessary to elaborate them here. Suffice it to say that this court is empowered to allow a party to amend his pleading at any stage of the proceedings upon such terms as the court may direct.
I will, therefore, allow, as I hereby do, the Chamber Summons application dated the 14th June 2004 in terms of prayers a) and b) thereof as in any event, there will be no prejudice occasioned to the Defendants/Respondents by my declining to hear at this stage their Preliminary Objection as contained in the Notice dated the 30th July 2004 as I consider that it has been prematurely raised – the same is hereby struck out.
It is ordered accordingly and further that the plaintiffs/applicants and the Defendants/Respondents will bear their respective costs of the application and the Preliminary objection respectively.
Dated and delivered at Nairobi this twelfth day of November 2004.
P. Kihara Kariuki
Ag. Judge