[2010] KEHC 25 (KLR)
The court held that under Order 1 rule 10(2) of the Civil Procedure Rules, the addition of any party to a suit requires leave of the court, unless the court directs otherwise. The plaintiff's act of amending the plaint to add a third defendant without seeking leave was improper, regardless of whether the amendment...
Source-derived case information.
- Citation
- [2010] KEHC 25 (KLR)
- Parties
- Plaintiff: I.G (minor suing through next friend and mother P.B. O); Defendant: James Nyangai Osoro; Defendant: Evans Nyabuto; Defendant: Maurice Nyabuto
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 25 of 2008
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Amended Plaint
- Outcome
- Application to strike out amended plaint allowed.
- Judges
- DK Musinga
- Legal Topics
- Amendment of Pleadings, Joinder of Parties, Leave of Court, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
I.G (minor suing through next friend and mother P.B. O)
Plaintiff
James Nyangai Osoro
Defendant
Evans Nyabuto
Defendant
Maurice Nyabuto
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Amended Plaint
Legal Issues
- 1 Whether the amended plaint adding the 3rd defendant without leave of court was proper.
- 2 Whether leave of court is required to add a party to a suit after pleadings have been filed.
Ratio Decidendi
The court held that under Order 1 rule 10(2) of the Civil Procedure Rules, the addition of any party to a suit requires leave of the court, unless the court directs otherwise. The plaintiff's act of amending the plaint to add a third defendant without seeking leave was improper, regardless of whether the amendment was made before the close of pleadings. The court distinguished between the amendment of pleadings and the addition of parties, emphasizing that the latter specifically requires judicial leave. Consequently, the court allowed the defendants' application to strike out the amended plaint and ordered the plaintiff to bear the costs of the application.
Court Disposition
Application to strike out amended plaint allowed.
Orders
- The application dated 13th October, 2009 is allowed.
- The amended plaint is struck out.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CIVIL SUIT NO. 25 OF 2008
I.G (minor suing through next friendand motherP.B. O).........................PLAINTIFF/RESPONDENT
VERSUS
JAMES NYANGAI OSORO..........................................................................1ST DEFENDANT/APPLICANT
EVANS NYABUTO........................................................................................2ND DEFENDANT/APPLICANT
MAURICE NYABUTO....................................................................................3RD DEFENDANT/APPLICANT
RULING
The original plaint filed on 30th April, 2008 had only the first two defendants. The two defendants entered appearance and filed a statement of defence and counter claim. The latter was filed on 1st July 2008. A reply to the defence was filed on 16th July 2008. An amended plaint was filed on 28th July, 2008. In the amended plaint the 3rd defendant was added and paragraphs 3, 9 and 10 of the original plaint were also amended. No leave was sought to amend the plaint and include the 3rd defendant.
The defendants filed an application dated 13th October, 2009 asking the court to strike out the amended plaint since it had been filed without leave of the court and was therefore an abuse of the court process.
When the suit came up for hearing on 10th June, 2010, Mr. Okenye who held brief for Mr. Reuben Masese for the defendants urged the court to strike out the amended plaint.
Mr. Mboga for the plaintiff argued that the amended plaint was filed before pleadings were closed. He said that the statement of defence was filed on 1st July, 2008 and was served upon his office on 10th July, 2008. A reply to the defence was filed on 16th July, 2008 and served on the same date. Underorder VI rule 11of theCivil Procedure Rules, pleadings are closed fourteen days after service of the reply or defence to counter claim. Fourteen days were therefore expiring on 31st July 2008. Counsel further submitted that the plaintiff did not require leave to add the 3rd defendant.
Underorder 1 rule 10 (2)of theCivil Procedure Rules, it is clear that addition of any party to a suit requires leave of the court, unless the court directs so on its own motion. The same provides as hereunder:
“(2) The court may at any stage of the proceedings, eitherupon or without the application of either party, and onsuch terms as may appear to the court to be just,order that the name of any person improperly joined,whether as plaintiff or defendant, be struck out, andthat the name of any person who ought to have beenjoined, whether as plaintiff or defendant, or whosepresence before the court may be necessary in orderto enable the court effectually and completely toadjudicate upon and settle all questions involved inthe suit, be added.”
There is a distinction between substitution or addition of a party to proceedings and amendment of pleadings. See ATIENO –VS- OMORO[1985] KLR 677.
It was improper for the plaintiff to amend the plaint by adding a party without leave of the court. Consequently, I allow the application dated 13th October, 2009. The plaintiff shall bear the costs of the application.
DATED, SIGNED AND DELIVERED AT KISII THIS 18TH DAY OF JUNE, 2010.
D. MUSINGA
JUDGE.
18/6/2010
Before D. Musinga, J.
Mobisa – cc
Mr. Ogari for Mr. Mboga for the Plaintiff
N/A for the Defendant
Court: Ruling delivered in open court on 18th June, 2010.
D. MUSINGA
JUDGE.