[2008] KEHC 3157 (KLR)
The court held that amendments to pleadings sought before hearing should generally be allowed unless they would cause injustice to the other party. In this case, the court found that no injustice would be occasioned to the defendants if the amendment was allowed. The amendment was deemed necessary for the conclusive...
Source-derived case information.
- Citation
- [2008] KEHC 3157 (KLR)
- Parties
- Plaintiff: Joel Otoigo Nyasinga; Defendant: Kenya Tea Dev. Agency; Defendant: Kiamokama Tea Factory; Defendant: Chrysantus M. Machoka; Defendant: Presiding Officer Kiamokama Tea Factory
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 44 of 2007
- Procedural Posture
- Civil Case / Ruling on Application for Leave to Amend Plaint
- Outcome
- application for leave to amend plaint allowed
- Judges
- DK Musinga
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Otoigo Nyasinga
Plaintiff
Kenya Tea Dev. Agency
Defendant
Kiamokama Tea Factory
Defendant
Chrysantus M. Machoka
Defendant
Presiding Officer Kiamokama Tea Factory
Defendant
Procedural Posture
Civil Case / Ruling on Application for Leave to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint before hearing.
- 2 Whether the amendment would cause injustice to the defendants.
Ratio Decidendi
The court held that amendments to pleadings sought before hearing should generally be allowed unless they would cause injustice to the other party. In this case, the court found that no injustice would be occasioned to the defendants if the amendment was allowed. The amendment was deemed necessary for the conclusive determination of the issues in controversy. Therefore, the court exercised its discretion to grant leave to the plaintiff to amend the plaint, subject to the plaintiff bearing the costs of the application.
Court Disposition
application for leave to amend plaint allowed
Orders
- Leave is granted to the plaintiff to file and serve an amended plaint within 15 days from the date of the ruling.
- The plaintiff will bear the costs of the application.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Case 44 of 2007
JOEL OTOIGO NYASINGA …..................................................……………… PLAINTIFF
VERSUS
1. KENYA TEA DEV. AGENCY
2. KIAMOKAMA TEA FACTORY
3. CHRYSANTUS M. MACHOKA
4. PRESIDING OFFICER KIAMOKAMA TEA FACTORY.…………… DEFENDANTS
RULING
The plaintiff filed an application brought under order VIA rules 5(1)of the Civil Procedure Rules and Sections 3A and 63(e) of the Civil Procedure Act seeking leave to amend his plaint. A draft of the amended plaint that was annexed to the plaintiff’s affidavit reveals that the plaintiff wishes to sue the fourth defendant in his own name rather than in his official position at the second defendant.
Mr. Minda who held brief for Mr. Nyachiro for the defendants opposed the said application. In his view, the application was brought under the wrong provisions of the law.
I have considered the application. It is trite law that amendments to pleadings sought before a hearing ought to be freely allowed unless they will cause injustice to the other side, see EASTERN BAKERY VS CASTIELINO [1958] E.A 461. I believe no injustice will be occasioned to the defendants if the amendment sought is allowed. Moreover, it will be necessary so that the issues in controversy between the parties can be determined conclusively. I therefore grant leave to the plaintiff to file and serve an amended plaint within 15 days from the date hereof. The plaintiff will bear the costs of the application.
DATED, SIGNED and DELIVEREDat KISII this 7th day of April, 2008
D. MUSINGA
JUDGE
Delivered in open court in the presence of:
Mr. Maroro HB for Omariba for plaintiff
N/A for defendant
D. MUSINGA
JUDGE