[2018] KEHC 308 (KLR)
The court granted leave to amend the plaint, holding that amendments before hearing are to be freely allowed unless the opposing party demonstrates prejudice that cannot be compensated by costs. The defendant's objections regarding joint ownership and unjust enrichment were deemed factual matters to be addressed at...
Source-derived case information.
- Citation
- [2018] KEHC 308 (KLR)
- Parties
- Plaintiff: John Martin Muchiri Mugo; Defendant: British-American Insurance Company (K) Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 63 of 2015
- Procedural Posture
- Civil Case / Ruling on Application to Amend Plaint
- Outcome
- Leave to amend plaint granted; costs in the cause.
- Judges
- CA Otieno
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Prejudice to Opposing Party
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Martin Muchiri Mugo
Plaintiff
British-American Insurance Company (K) Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint to introduce claims for loss of user and pre-accident value of a motor vehicle.
- 2 Whether the proposed amendment would prejudice the defendant in a manner not compensable by costs.
Ratio Decidendi
The court granted leave to amend the plaint, holding that amendments before hearing are to be freely allowed unless the opposing party demonstrates prejudice that cannot be compensated by costs. The defendant's objections regarding joint ownership and unjust enrichment were deemed factual matters to be addressed at trial, not grounds to deny amendment. The court emphasized the statutory mandate to allow amendments for the purpose of determining the real issues in controversy. Costs were ordered to be in the cause, as the need for amendment arose from the plaintiff's initial error.
Court Disposition
Leave to amend plaint granted; costs in the cause.
Orders
- Plaintiff granted leave to amend the plaint as sought.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 63 OF 2015
JOHN MARTIN MUCHIRI MUGO...........................................................PLAINTIFF
VERSUS
BRITISH-AMERICAN INSURANCE COMPANY (K) LIMITED....DEFENDANT
REASONS FOR GRANT OF LEAVE TOAMMEND THE PLAINT
1. This afternoon, I did allow the plaintiffs application to amend the plaint and introduce claims for loss of user and pre-accident value of a motor vehicle.In making that summary decision I took into account the principle of law that amendment sought before hearing commences should be granted as of cause unless prejudice be demonstrated to await the opposite party and that there can never be prejudice to the other side incapable of compensation by an award of costs.[1]
2. I have equally taken regard of the statutory dictate that courts allow amendments for the purposes of enabling the court determine the real questions in controversy between the parties[2]. With those principles in mind and having noted the objection filed by the Defendant to the effect that the vehicle was registered in joint names of persons not parties to the suit and that the sum sought points towards desire to unjust enrichment, I deem those as factual matters the defendant can plead and lead evidence upon at trial but cannot be the basis to refuse leave to amend.
4. On costs, even though the plaintiff has succeeded in the application, he, having been the cause of the error at institution of the suit that necessitated the need to seek amendment, I direct that the costs be in the cause.
Dated at Mombasa this 14th day of November 2018.
P.J.O. OTIENO
JUDGE
[1] Eastern Bakery vs Castelino [1958] E.A. 461
[2] Order 8 Rule 5