[2018] KEELC 1339 (KLR)
The court held that the application for leave to amend the plaint was merited as it was brought in good faith, without undue delay, and would not prejudice the defendant or alter the substance of the case. The court exercised its discretion to grant the plaintiff leave to amend the plaint within 15 days, with a...
Source-derived case information.
- Citation
- [2018] KEELC 1339 (KLR)
- Parties
- Applicant: John Gachui Njuguna alias John Gachui; Respondent: Lucas Kipkosgey Chepkitony
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 263 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Leave to Amend Plaint and Production of Police File
- Outcome
- application partially allowed
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Production of Documents, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Gachui Njuguna alias John Gachui
Applicant
Lucas Kipkosgey Chepkitony
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Leave to Amend Plaint and Production of Police File
Legal Issues
- 1 Whether the plaintiff/applicant should be granted leave to amend the plaint.
- 2 Whether the court should order the DCIO Eldoret West Central Police Station to produce the sample signature and police file for verification.
Ratio Decidendi
The court held that the application for leave to amend the plaint was merited as it was brought in good faith, without undue delay, and would not prejudice the defendant or alter the substance of the case. The court exercised its discretion to grant the plaintiff leave to amend the plaint within 15 days, with a corresponding right for the defendant to amend the defence and counterclaim. However, the court found that the request for production of the police file and sample signature was premature and not appropriate at this stage of proceedings. The applicant was advised to seek such orders through witness summons if the issue became contentious during trial. The court thus partially...
Court Disposition
application partially allowed
Orders
- Plaintiff granted leave to file and serve an amended plaint within 15 days from the date of the ruling, failing which the order lapses.
- Defendant granted corresponding leave to file an amended defence and counterclaim upon service.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT ELDORET
ELC NO. 263 OF 2017
JOHN GACHUI NJUGUNA ALIAS JOHN GACHUI..........PLAINTIFF/APPLICANT
VERSUS
LUCAS KIPKOSGEY CHEPKITONY...........................DEFENDANT/RESPONDENT
RULING
This ruling is in respect of an application dated 16th April 2018 brought by way of Notice of Motion by the plaintiff /applicant for orders :
1. That the plaintiff/applicant be granted leave to amend the plaint dated 18/7/17.
2. That the DCIO Eldoret West Central Police Station do avail the results of the sample signature of the plaintiff/applicant and the resultant police file into this Honourable court for verification.
3. That costs of this application be provided for.
Counsel for the parties relied on the grounds on the face of the application together with the affidavits filed.
I have considered the application together with the supporting documentation filed by the parties herein. Courts have powers to allow applications for amendments but the same must be brought in good faith and without delay. The proposed amendments must also not cause injury or prejudice to the opposing parties. It should also not be an abuse of the court process or change the substratum of the case. If the court is satisfied that the above has been met then it can exercise its discretion to allow the application and set the terms for the amendment.
On the second limb of the application for the DCIO Eldoret West Police station to avail the results of sample signature of the plaintiff/applicant including the police file, I wish to state that this is not the right time to apply for such orders. If the same is an issue of contention then the applicant can apply for witness summons for the production of the police file together with the sample signature. I find that limb of the application has no merit and is therefore disallowed.
However the plaintiff is granted leave to file and serve an amended plaint within 15 days from the date of this ruling failure of which the order lapses. The defendant is also granted a corresponding leave to file an amended defence and counterclaim upon service.
Dated and delivered at Eldoret this 18th day of September, 2018.
M.A ODENY
JUDGE
Ruling read in open court in the presence of Mr. Mathai for Plaintiff/Applicant and Miss Kiplagat holding brief for Miss Cheso for defendant/Respondent.