[2010] KEHC 2062 (KLR)
The court held that since the application to amend the plaint was made before the hearing and there was no evidence that allowing the amendment would cause injustice to the defendant, the amendment should be allowed. The court relied on established legal principles that amendments before hearing are generally...
Source-derived case information.
- Citation
- [2010] KEHC 2062 (KLR)
- Parties
- Plaintiff: Jemima Moraa Sobu; Defendant: Trans-National Bank Limited
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 378 of 1997
- Procedural Posture
- Civil Case / Ruling on Application to Amend Plaint
- Outcome
- Application to amend plaint allowed.
- Judges
- DK Musinga
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Pre Trial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jemima Moraa Sobu
Plaintiff
Trans-National Bank Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to re-amend the plaint before hearing.
- 2 Whether allowing the amendment would cause injustice to the defendant.
Ratio Decidendi
The court held that since the application to amend the plaint was made before the hearing and there was no evidence that allowing the amendment would cause injustice to the defendant, the amendment should be allowed. The court relied on established legal principles that amendments before hearing are generally permitted to ensure all issues are properly before the court, provided no injustice is occasioned to the other party. The defendant did not demonstrate any prejudice or injustice that would result from the amendment, and therefore, the application was granted.
Court Disposition
Application to amend plaint allowed.
Orders
- The plaintiff is granted leave to file the amended plaint within 14 days from the date of the ruling.
- The plaintiff shall pay the appropriate court filing fees for the special damages sought.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
Civil Case 378 of 1997
JEMIMA MORAA SOBU...............................................................PLAINTIFF
VERSUS
TRANS-NATIONAL BANK LIMITED......................................DEFENDANT
RULING
The plaintiff’s application dated 14th September 2006 seeks leave to re-amend the plaint in terms of a draft that is annexed to the application. The purpose of the amendment is to bring out all the issues in controversy.
The defendant did not file a replying affidavit but put in grounds of opposition. The hearing date for the application was fixed in the presence of Mr. Ochoki who held brief for the defendant’s advocate. However, the defendant’s advocate did not attend court when the application came up for hearing.
It is now settled law that amendments to pleadings sought before a hearing should be freely allowed if they can be made without causing injustice to the other party. SeeEASTERN BAKERY –VS- CASTELINO[1958] E.A. 46. I do not see any injustice that would be occasioned to the defendant by allowing the plaintiff’s application to amend her plaint.
Consequently, I allow the application and direct that the amended plaint be filed within the next 14 days from the date hereof. The appropriate court filing fees for the special damages sought should be paid. The plaintiff shall bear the costs of the application.
DATED, SIGNED AND DELIVERED AT KISII THIS 22ND DAY OF JUNE, 2010.
D. MUSINGA
JUDGE.
22/6/2010
Before D. Musinga, J.
Mobisa – cc
N/A for the plaintiff
Mr. Gichana for the Defendant/Respondent
Court:Ruling delivered in open court on 22nd June, 2010.
D. MUSINGA
JUDGE.