[2003] KEHC 640 (KLR)
The court found that the plaintiffs, at the time of instituting the suit, held the capacity of administrators as evidenced by the Grant of Letters of Administration De Bonis Non. The defendant was aware of this capacity, having been served with the relevant documents. The use of 'executors' instead of...
Source-derived case information.
- Citation
- [2003] KEHC 640 (KLR)
- Parties
- Plaintiff: Jaishree Dharamshi Shah; Plaintiff: Kalpat Dharamshi Shah; Plaintiff: Anita Dharamshi Shah; Defendant: Stanbic Bank Kenya Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 441 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Amend Capacity of Plaintiffs
- Outcome
- application allowed
- Legal Topics
- Amendment of Pleadings, Capacity of Parties, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jaishree Dharamshi Shah
Plaintiff
Kalpat Dharamshi Shah
Plaintiff
Anita Dharamshi Shah
Plaintiff
Stanbic Bank Kenya Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Capacity of Plaintiffs
Legal Issues
- 1 Whether the plaintiffs should be granted leave to amend their capacity from 'executors' to 'administrators' in the suit.
- 2 Whether such amendment would prejudice the defendant, especially in light of the interim injunction obtained.
Ratio Decidendi
The court found that the plaintiffs, at the time of instituting the suit, held the capacity of administrators as evidenced by the Grant of Letters of Administration De Bonis Non. The defendant was aware of this capacity, having been served with the relevant documents. The use of 'executors' instead of 'administrators' was a clear and admitted error by counsel, which did not prejudice the defendant, as the substance of the interim injunction would not have changed. The Civil Procedure Rules expressly allow for such an amendment where the party could have sued in the correct capacity at the time of filing. Therefore, the court allowed the amendment, finding no justifiable reason to bar the...
Court Disposition
application allowed
Orders
- Leave is granted to the plaintiffs to amend their capacity from 'executors' to 'administrators'.
- Costs of the application are awarded to the defendant.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL CASE NO. 441 OF 2002
JAISHREE DHARAMSHI SHAH……………………… 1ST PLAINTIFF
KALPAT DHARAMSHI SHAH ……………………….. 2ND PLAINTIFF
ANITA DHARAMSHI SHAH ………………………….. 3RD PLAINTIFF
As executors of the estate of DHARAMSHI RAJPAR SHAH
VERSUS
STANBIC BANK KENYA LIMITED …………………… DEFEMDAMT
RULING
The Applicants seek leave to amend the capacity in which they bring the suit under the provisions of Order 6A rule 3 (4) and (8) of the Civil Procedure Rules. In the original suit their capacity is described as Executors of the estate of Dharamshi Rajpar shah and now they want to amend the same and give their capacity as that of Administrators.
Counsel for the Plaintiffs submitted that this was a pure error on the part of the counsel and the first Plaintiff who swore the affidavit in support for having used the word ‘Executors’ and ‘Administrators’ interchangeably in the initial pleadings he further submitted that the said amendment would not prejudice the Defendant’s position in any way
. However, counsel for the Defendant strongly submitted that it would prejudice the Defendant in that there is an interim order of injunction in place obtained on the basis that the Plaintiffs’ were suing in their capacity as Executors.
Order 6A rule 3 (4) does prov
“An amendment to alter the capacity in which a party sues (whether Plaintiff or as Defendant by counterclaim) may be allowed under Sub -rule (2) if the capacity in which the party will sue is one in which at the date of filing of plaint or counterclaim, he could have sued.”
The plaint filed on 11th December 2002 describes them as Executors and so does the Chamber Summons dated 10th December 2002 by which they sought the injunction orders. However in the affidavit in support of the said Chamber Summons sworn by JAISHREE DHARAMSHI SHAH, describes herself in paragraph 1 as a co-executrix and at the same time as an administrator. At paragraph 7 she has exhibited a photocopy of the Grant issued on 3rd September, 2002. It is a Grant of Letters of Administration De Bonis Non. The Defendant was served with the said application and filed a reply to the same. From the pleadings referred to, it is clear the Plaintiffs at the time of instituting the suit held the capacity of Administrators and the Defendant can not say they would be prejudiced when they were in possession of a copy of the Grant describing them as Administrators. In any case, the orders of injunction sought would not have altered in any form by reason simply of the capacity as at the time the court only considered the reasons advanced in support of the prayer for an interim order of an injunction.
Sub-rule 4 of Order 6A (3) does allow for this nature of an amendment and I see no good reason to bar the Plaintiffs by reason of an error which clearly was and has been admitted by counsel as a mistake on his part. The error is one that can be cured and in the circumstances allow the application with orders of costs to the Defendant. Dated and delivered this 6th day of June, 2003.
P.M. TUTUI
COMMISSIONER OF ASSIZE
.