[2007] KEHC 3319 (KLR)
The court found that although the plaintiff had failed to disclose the existence of prior proceedings in the verifying affidavit, and had not explained this omission by affidavit, the defendant had already pleaded the existence of those proceedings in his defence. The intended amendment merely confirmed what was...
Source-derived case information.
- Citation
- [2007] KEHC 3319 (KLR)
- Parties
- Plaintiff: Henry Kiptalam Barng'etuny; Defendant: Stanely A. Ngetich
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 53 of 2003
- Procedural Posture
- Civil Case / Ruling on Application for Leave to Amend Plaint
- Outcome
- Application allowed with costs to the respondent.
- Judges
- K Bauni
- Legal Topics
- Amendment of Pleadings, Verifying Affidavit, Res Judicata, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Kiptalam Barng'etuny
Plaintiff
Stanely A. Ngetich
Defendant
Procedural Posture
Civil Case / Ruling on Application for Leave to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint to disclose prior proceedings between the parties.
- 2 Whether the delay in bringing the application for amendment is inordinate and prejudicial to the defendant.
- 3 Whether the omission of disclosure in the verifying affidavit amounts to perjury and bars the amendment.
Ratio Decidendi
The court found that although the plaintiff had failed to disclose the existence of prior proceedings in the verifying affidavit, and had not explained this omission by affidavit, the defendant had already pleaded the existence of those proceedings in his defence. The intended amendment merely confirmed what was already on record and did not prejudice the defendant. The delay in bringing the application, while unexplained, was not fatal as the case had not yet been heard. Therefore, the interests of justice required that leave to amend be granted, subject to the applicant bearing the costs of the application.
Court Disposition
Application allowed with costs to the respondent.
Orders
- Plaintiff/applicant granted leave to amend the plaint filed on 26th May 2003.
- The amended plaint to be filed within 15 days from the date of the ruling.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Case 53 of 2003
HENRY KIPTALAM BARNGETUNY:................PLAINTIFF
VERSUS
STANELY A. NGETICH:...................................DEFENDANT
RULING
The Plaintiff/Applicant vide his application dated 12th November,2006 seeks leave of the court to amend his plaint filled on 26th May 2003. He also seeks the annexed draft of amended plaint to be deemed as duly filled on payment of requisite fee. Lastly he seeks costs of the application to be in the costs.
Mr. Cheluget who prosecuted the application submitted that the applicant when he filed the plaint stated in paragraph 8 of the same that there was no suit pending or other proceedings in court between parties. However there was a land Dispute in Kapsabet whose award was adopted by the Kapsabet court as judgement. This fact was not disclosed and the intended amendment is to disclose that fact. The annexed draft amended plaint is accompanied by an affidavit which discloses that fact.
The application was opposed. Mr. Shivaji submitted that the applicant has come to court with unclean hands as he had deponed a verifying affidavit stating that there was no other suit between the parties. He had Pejured himself. Further he said that the application was brought after an inordinate delay. The plaint was filed in the 2003, Defendant filed a defence and clearly stated that there had been another suit between the parties. Since then no steps were taken by the applicant.
I have considered the application. Indeed it is clear that the applicant Pejured himself when he swore in the verifying affidavit that there was no other suit between the parties. He has not sworn any affidavit to explain that issue. Instead it was his counsel who deponed in the supporting affidavit that that issue was not disclosed to him and that is why it was omitted.
However, the above aside, I think there will be no prejudice suffered by respondent if the application is allowed. The Respondent/Defendant has himself disclosed that fact in his defence and I do note that he has also filed an application to have the suit dismissed for being resjudicate due to those previous proceedings. That application has yet to be prosecuted. The intended amendment only seeks to confirm what the respondent/defendant has pleaded and as such I do not see any prejudice he would suffer. I dare say that it is even in his interest that such a fact be disclosed. It is also true that the applicant did not take any action for almost two years but then the case has not been heard. It is therefore not too late to bring the application though the delay was not explained.
From the above therefore I find application has merit. Prayer (a) of the application is allowed and the plaintiff/applicant is hereby granted leave to amend the plaint filed on 26th May 2003. The amended plaint be filed within 15 days from today’s date.
The applicant will however bear the costs of this application to the respondent which I assess as Shs.5000/= to be paid within the next 30 days.
Dated and delivered at Eldoret this 26th day of January,2007.
KABURU BAUNI
JUDGE
Ruling Delivered in the presence of:-
C.C - David
N/A - for Applicant
Mr. Shivaji for Nyachiro for Respondent.