[2005] KECA 184 (KLR)
The Court of Appeal held that the trial judge properly exercised his discretion in refusing leave to amend the plaint, as the proposed amendments would have the effect of re-opening matters already adjudicated upon by the High Court. The appellant failed to demonstrate that the judge acted on wrong materials or...
Source-derived case information.
- Citation
- [2005] KECA 184 (KLR)
- Parties
- Appellant: James Nandasaba; Respondent: Willis Wachilonga
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 222 of 2002
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Amendment of Pleadings, Abuse of Court Process, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Nandasaba
Appellant
Willis Wachilonga
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in declining to grant leave to amend the plaint before trial.
- 2 Whether the proposed amendments would amount to re-opening matters already adjudicated upon.
- 3 Whether the trial court exercised its discretion on wrong principles or materials.
Ratio Decidendi
The Court of Appeal held that the trial judge properly exercised his discretion in refusing leave to amend the plaint, as the proposed amendments would have the effect of re-opening matters already adjudicated upon by the High Court. The appellant failed to demonstrate that the judge acted on wrong materials or applied the wrong legal principle. The court emphasized that amendments should not be allowed where they constitute an abuse of process or seek to revive issues already settled by previous litigation. Accordingly, there was no basis to interfere with the trial court's exercise of discretion, and the appeal was dismissed with costs.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL KISUMU
CIVIL DIVISION
CIVIL APPEAL 222 OF 2002
JAMES NANDASABA ………..……………………… APPELLANT
AND
WILLIS WACHILONGA ………..…….………….. RESPONDENT
JUDGMENT OF THE COURT
This is an appeal from an Order of the Hon. Mr.Justice Ringera (as he then was) dated 18th June 2000 in HCCC No.93 0f 1999 in which he declined to give leave to amend the plaint. That ruling was in the following terms:- “It is settled practice that amendments sought before trial should be granted unless it be shown that the adverse party would suffer an injustice (see Costelino v Eastern Baker Co (1958) EA). And it is generally perceived to be the case that no such injustice could arise unless the respondent could not be compensated by an order of costs. Such would be the case where for instance the applicant seeks to amend his plaint in such a manner as to defeat the respondent’s rights which may have vested in him as a result of any expiry of limitation or where it is otherwise shown that the application is not made in good faith. In the instant matter the second wdefendant’s objection to the proposed amendments is that they seek to revive matters which were adjudicated upon by this court sitting in Kakamega in civil suit no.55 of 1974. Reference has been made to the contents of paragraphs 6, 8, and 9 of the proposed amended plaint. The applicant’s response is that if that is so, the respondent will have an opportunity to state so in his amended defence. That may very well be so but to accede to that argument would be to entertain the notion that this court could serve as an academic forum. It cannot; in my opinion, the court is duty bound to ensure its process is not abused. Where, as here, the intended amendment would have the effect of re-opening matters already adjudicated upon, I cannot but find that the same are not sought in good faith. They do indeed amount to an abuse of the court process.
In the result, I must decline to allow the application. The same is dismissed with costs to the 2nd defendant.” The amendments sought were extensive and we agree with the superior court that they would have the effect of re-opening matters already adjudicated upon by the High Court. Sir Kenneth O’Connor P. in Eastern Bakery v. Castelino[1958]EA 461 stated that:- “Generally speaking this Court will not interfere with the discretion of a Judge in disallowing or allowing an amendment to a pleading, unless it appears that in reaching his decision he has proceeded on wrong materials or a wrong principle.”
The applicant has not shown that Ringera J. reached his decision to refuse leave to amend the plaint on the basis of wrong materials or by the application of a wrong principle and we see no reason to interfere with his exercise of his discretion. We therefore dismiss the appeal with costs.
Dated and delivered at Kisumu this 15th day of July, 2005.
R. S. C. OMOLO
………………………..
JUDGE OF APPEAL
E. O. O’KUBASU
………………………..
JUDGE OF APPEAL
W. S. DEVERELL
………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR