[2015] KEHC 1373 (KLR)
The court allowed the plaintiff's application to amend the plaint, noting that the amendments sought were not opposed and were substantively acceptable. However, the court emphasized that the amendments must strictly comply with the procedural requirements of Order 8 Rule 7 of the Civil Procedure Rules, specifically...
Source-derived case information.
- Citation
- [2015] KEHC 1373 (KLR)
- Parties
- Plaintiff: John Kinyanjui Karanja; Defendant: Kenya Power & Lighting Company Ltd
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 32 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Plaint
- Outcome
- application allowed with directions
- Judges
- MA Silau
- Legal Topics
- Amendment of Pleadings, Mode of Amendment, Trespass to Land, Mesne Profits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kinyanjui Karanja
Plaintiff
Kenya Power & Lighting Company Ltd
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint to specify the amount of damages sought and rearrange the prayers.
- 2 Whether the proposed amendments comply with the procedural requirements under Order 8 Rule 7 of the Civil Procedure Rules.
Ratio Decidendi
The court allowed the plaintiff's application to amend the plaint, noting that the amendments sought were not opposed and were substantively acceptable. However, the court emphasized that the amendments must strictly comply with the procedural requirements of Order 8 Rule 7 of the Civil Procedure Rules, specifically the need to underline added words and strike out deleted words in red ink. The court directed the plaintiff to file and serve the properly amended plaint within 14 days, and ordered the plaintiff to bear the costs of the application due to the failure to plead the case properly in the first instance.
Court Disposition
application allowed with directions
Orders
- Plaintiff granted leave to amend the plaint as sought, subject to compliance with Order 8 Rule 7 of the Civil Procedure Rules.
- Amended plaint to be filed and served within 14 days from the date of the ruling.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT KERICHO
ENVIRONMENT & LAND CASE NO.32 OF 2014
JOHN KINYANJUI KARANJA........................................................PLAINTIFF
VERSUS
KENYA POWER &
LIGHTING COMPANY LTD...................................................... DEFENDANT
R U L I N G.
(Application to amend plaint; mode of amendment of plaint; need to underline added words and strike out deleted words; application allowed but plaintiff directed to amend as required by the rules.)
The application before me is that dated 20th July, 2015 filed by the plaintiff. It is an application seeking to amend the plaint which is not opposed by the defendant.
The case of the plaintiff is that he is owner of the land parcel Kericho/Kipsitet/851. His quarrel with the defendant is that they encroached into his land, damaged the perimeter fence and made a road through his land. In his suit he has asked for the following prayers :-
(a) Damages for trespass.
(b) mesne profits.
(c) Costs of the suit.
I have looked at the application and the draft of the proposed amended plaint. The draft of the amended plaint is not very well done because some of the new amendments are not underlined as required by the rules. I can however see that what the plaintiff wants to do, is add a new paragraph 7A to specify the amount of damages that he seeks, which is the sum of Kshs. 2,527,560/=. This amount is also proposed to be included as part of his prayers.
I have no serious problem with the amendments. However, the amended plaint has to be well underlined as required by the rules, which unfortunately, has not been done in the draft of the amended plaint annexed to the application. I wish to draw the plaintiff and his counsel to the provisions of Order 8 Rule 7 which is drawn as follows :-
7. Mode of amendment [Order 8, rule 7. ]
(1) Every pleading and other documents amended under this Order shall be endorsed with the date of the amendment and either the date of the order allowing the amendment or, if no order has been made, the number of the rule in pursuance of which the amendment was made.
(2) All amendments shall be shown by striking out in red ink all deleted words, but in such a manner as to leave them legible, and by underlining in red ink all added words.
(3) Colours other than red shall be used for further amendments to the same document.
In our case, the new words have not been underlined. There is also an addition and a rearrangement of the original prayers, which means that there is an amendment in the numbering of the prayers sought. There is need, as provided by the rules, for the amendments to be done properly and I advise the plaintiff to follow strictly the provisions of Order 8 Rule 7. Save for that direction, I do allow the plaintiff to amend his plaint. I further direct that the amended plaint be filed and served within 14 days from today.
The plaintiff will shoulder the costs of the application as he had opportunity to plead his case properly in the first instance.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KERICHO THIS 13th DAY OF NOVEMBER, 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
In the presence of;
1. N/A on part of M/s Ngugi Mwaniki & Co.Advocates for Plaintiff/Applicant.
2. N/A on part of M/s Wamaasa, Masese, Nyamwange & Co.Advocates for Defendant/Respondent.