[2006] KEHC 2720 (KLR)
The court found that there was no judicious reason to deny the applicant leave to abandon the specified prayers and to amend prayer 4 as sought. The court reasoned that the objections raised by the defendant were contradictory: on one hand, he argued that the amendments were substantive and required a formal...
Source-derived case information.
- Citation
- [2006] KEHC 2720 (KLR)
- Parties
- Plaintiff: Housing Finance Co. of Kenya Ltd; Defendant: George Gikubu Mbuthia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 4140 of 1990
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- Application for leave to abandon certain prayers and amend prayer 4 allowed. Applicant to proceed with amended prayer 4. Costs in the cause.
- Judges
- CM Njagi
- Legal Topics
- Amendment of Pleadings, Transfer of Suit, Abandonment of Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Housing Finance Co. of Kenya Ltd
Plaintiff
George Gikubu Mbuthia
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant should be allowed to abandon certain prayers in the notice of motion.
- 2 Whether the applicant should be granted leave to amend prayer 4 of the application to seek transfer of the case file to Milimani Commercial Courts.
- 3 Whether the objections raised by the defendant regarding the competence of the application and the manner of amendment are valid.
Ratio Decidendi
The court found that there was no judicious reason to deny the applicant leave to abandon the specified prayers and to amend prayer 4 as sought. The court reasoned that the objections raised by the defendant were contradictory: on one hand, he argued that the amendments were substantive and required a formal application under Order VIA rule 1(1), and on the other, he claimed there was nothing to amend or transfer. The court held that by raising the issue of amendment procedure, the defendant implicitly acknowledged the existence of an application capable of amendment. The court exercised its discretion to allow the abandonment of the specified prayers and the amendment of prayer 4,...
Court Disposition
Application for leave to abandon certain prayers and amend prayer 4 allowed. Applicant to proceed with amended prayer 4. Costs in the cause.
Orders
- Leave granted to applicant to abandon prayers 1, 1A, 2, 3, 5, and 6 of the application.
- Leave granted to applicant to amend prayer 4 as proposed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 4140 of 1990
HOUSING FINANCE CO. OF KENYA LTD …...............................….………PLAINTIFF
VERSUS
GEORGE GIKUBU MBUTHIA ……………..............................…………. DEFENDANT
RULING
The application which was coming up for hearing was one by notice of motion dated 14th March, 2003, and brought under sections 63(e), 3 and 3A of the Civil Procedure Act, and Orders XVI rule 5, XXIV, XXV, and L rules 1 and 15 of the Civil Procedure Rules. The application sought the following orders from the court-
1. THAT the defendant’s counterclaim be dismissed for want of prosecution.
1A THAT the defendant’s amended defence and counterclaim
dated 28th January, 2004 are an abuse of the process of this court.
2. THAT in the event that the Honourable Court is not inclined to grant prayer 1 above, then it be pleased to order that the defendant do supply security for costs to the plaintiff
3. THAT this court do take judicial notice of the fact that the defendant is a vexatious litigant.
4. THAT should this court not be inclined to dismiss the defendant’s counterclaim, then it be pleased to order that the case file be transferred to the High Court of Kenya at the Milimani Commercial Courts for it’s hearing and determination.
5. THAT the defendant be condemned to meet the costs of this application in any event.
6. THAT the defendant be condemned to meet the costs of this suit.
At the hearing of the application, Mr. Muriithi appeared for the plaintiff/applicant while Mr. Mbuthia, the defendant, appeared in person. At the commencement of the hearing Mr. Muriithi wasted no time to tell the court that he wished to abandon prayers 1, 1A, 2, 3,5 and 6 of the application, and to amend prayer 4 to read-
“THAT the case file be transferred to the High Court of Kenya at the Milimani Commercial Courts for its hearing and determination.”
Mr. Mbuthia opposed the application, arguing that these were substantial amendments, which should come under O. VIA rule 1(1). He then added that there was nothing to amend as the plaintiff was non suited way back in 1991. He also contended that the application was filed almost three years ago and the purpose of filing it was to buy time so that the plaintiff might be able to give notice under section 69 of the Transfer of Property Act with a view to selling the property. He finally submitted that the application was incompetent as it was supported by an affidavit which contravened the provisions of sections 34 and 35 of the Advocates Act. Therefore, there was nothing to transfer to Milimani and the applicant should withdraw the whole application.
In reply, Mr. Muriithi said that he was withdrawing the whole application save for prayer 4.
I have considered the arguments of both sides. While I find Mr. Mbuthia’s arguments very interesting, I also think that he also contradicted himself. He started by saying that Mr. Muriithi’s application involved substantive amendments which ought to be brought under O.VIA rule 1(1). In the next breath, he said that there was nothing to amend as the plaintiff had been non-suited, and that there was nothing to transfer to Milimani as the notice of motion was incompetent. By contending that the amendments should have been sought under O.VIA rule (1), Mr. Mbuthia impliedly admitted that there was an application which could be amended. Whether it could be transferred to Milimani would be an issue to be argued next if the amendment sought was granted.
I see no judicious reason why the applicant should not be allowed to abandon prayers 1, 1A, 2, 3, 5, and 6 as sought, and also why it should not be allowed to amend prayer 4 as applied for. I accordingly allow the applicant leave to abandon prayers 1, 1A, 2, 3, 5 and 6, and to amend prayer 4 as proposed.
The applicant may now proceed to take a date for the hearing of prayer 4 as amended. Costs will be in the cause.
Dated and delivered at Nairobi this 22nd day of February, 2006
L. NJAGI
JUDGE