[2008] KEHC 3115 (KLR)
The court held that the power to allow amendments at any stage of the proceedings exists under Order VIA of the Civil Procedure Rules, and such amendments should be allowed if they are necessary for determining the real questions in controversy and do not cause injustice to the other party. Since the plaintiff did...
Source-derived case information.
- Citation
- [2008] KEHC 3115 (KLR)
- Parties
- Plaintiff: Isaac Kagiri Njagi; Defendant: Mithamo Mucchiri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 211 of 2007
- Procedural Posture
- Civil Case / Ruling on Application to Amend Defence
- Outcome
- Application allowed.
- Judges
- JL Osiemo
- Legal Topics
- Pleadings Amendment, Leave to Amend, Interests of Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Kagiri Njagi
Plaintiff
Mithamo Mucchiri
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Defence
Legal Issues
- 1 Whether the defendant should be granted leave to amend his defence before hearing.
- 2 Whether the proposed amendment would cause injustice to the plaintiff.
Ratio Decidendi
The court held that the power to allow amendments at any stage of the proceedings exists under Order VIA of the Civil Procedure Rules, and such amendments should be allowed if they are necessary for determining the real questions in controversy and do not cause injustice to the other party. Since the plaintiff did not oppose the application and the amendment was necessary to clarify the issues for adjudication, the court found no reason to deny the application. The application was therefore allowed in terms of the prayers sought.
Court Disposition
Application allowed.
Orders
- Leave is granted to the defendant to amend his defence as per prayers 1, 2 and 3 of the Chamber Summons dated 18th July 2007.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Civil Case 211 of 2007
ISAAC KAGIRI NJAGI…………......……………………PLAINTIFF
VERSUS
MITHAMO MUCCHIRI……………………………….DEFENDANT
R U L I N G
Before me is an application by way of a Chamber Summons dated 18th July 2007 and expressed to be brought under Order VIA of the Civil Procedure Rules in which the Defendant seeks leave to amend his defence. The application is based on the ground that the amendment is necessary to enable the Defendant bring out issues in controversy succinctly for adjudication by the court. The application is also supported by an affidavit sworn by the Defendant in which he avers that he has been advised by his advocates on record whose advise he verily believes to be true that the defence as filed does not adequately capture the issues to be canvassed and require amendment as per annexed amended defence. The Defendant further avers that it is in the interest of justice that the same be amended so that the issues in controversy are succinctly set out to enable the court effectively adjudicate the matter.
The Plaintiff was served with this application but did not file any papers in opposition to the same.
It is trite law that amendments sought before the hearing should be freely allowed if they can be made without injustice to the other side and there is no injustice if the other side can be compensated by costs.
In the case of DANIEL MIGWI NJAI VS. HIGH VIEW FARM LTD CA NO. 139 OF 1989 (unreported) the Court of Appeal said:-
”There is no question that the court has power under O. VIA of the Civil Procedure Rules to allow an amendment at any stage of the proceedings on such terms as to costs or otherwise as may be just for the purpose of determining the real question in controversy between the parties. There is no doubt that an amendment can always be allowed if the interest of justice so requires.”
Having looked at the draft amended defence annexed to this application I am satisfied that the amendment sought is necessary so that the issues in controversy are succinctly set out to enable the court effectively adjudicate the matter.
Accordingly the application is allowed in terms of prayers 1, 2 and 3 of the Chamber Summons dated 18th July 2007.
Dated and Nairobi this 29th day of February 2008.
J. L. A. OSIEMO
JUDGE