[2009] KEHC 1634 (KLR)
Although the law allows for oral applications to amend pleadings, the court found that, given the ongoing nature of the suit and the opposition raised, it would not be prudent to allow an informal application for amendment. The court emphasized that a formal application is necessary to ensure the respondent has a...
Source-derived case information.
- Citation
- [2009] KEHC 1634 (KLR)
- Parties
- Plaintiff: John Osewe Ogola & 46 Others; Defendant: Raghbir Singh Sandu t/a Hotel Royal
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 43 of 2003
- Procedural Posture
- Civil Suit / Ruling on Oral Application to Amend Chamber Summons
- Outcome
- Oral application for amendment declined; applicant directed to file a formal application.
- Judges
- J Karanja
- Legal Topics
- Amendment of Pleadings, Oral Application, Formal Application Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Osewe Ogola & 46 Others
Plaintiff
Raghbir Singh Sandu t/a Hotel Royal
Defendant
Procedural Posture
Civil Suit / Ruling on Oral Application to Amend Chamber Summons
Legal Issues
- 1 Whether an oral application to amend the chamber summons is permissible under the Civil Procedure Rules and Act.
- 2 Whether the court should allow an informal application for amendment in the circumstances of the ongoing suit.
Ratio Decidendi
Although the law allows for oral applications to amend pleadings, the court found that, given the ongoing nature of the suit and the opposition raised, it would not be prudent to allow an informal application for amendment. The court emphasized that a formal application is necessary to ensure the respondent has a fair and proper opportunity to challenge the intended amendment, thereby upholding the principles of procedural fairness and due process.
Court Disposition
Oral application for amendment declined; applicant directed to file a formal application.
Orders
- The applicant is directed to make a formal application for amendment as by law established.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU
Civil Suit 43 of 2003
JOHN OSEWE OGOLA & 46 OTHERS…………………….PLAINTIFFS
VERSUS
RAGHBIR SINGH SANDU T/A HOTEL ROYAL…......… DEFENDANT
RULING
Under Order 6A Rule 8 of the Civil Procedure Rules, pleadings may be amended on an oral application to that effect.
The general power to amend any defect or error in any proceeding in a suit and any other necessary amendment is donated by Section 100 of the Civil Procedure Act.
The applicant is therefore within the legal boundaries in applying to orally amend the Chamber Summons dated 6th May 2009.
However, it has now been noted by this court that the suit is actually in progress and had commenced on 27th January 2004 before Warsame J – before being taken over by Tanui – J on 24th May 2004 and eventually by Mwera J – on the 18th February 2009.
In the circumstances and considering that the grounds of opposition to the chamber summons sought to be amended are also directed at the provisions of the law cited, it would not be prudent to allow an informal application for amendment notwithstanding the alleged typographical errors.
A formal application would give the respondent ample and proper opportunity to challenge the intended amendment.
Consequently, it is now directed that the applicant makes a formal application for amendment as by law established.
Dated, signed and delivered at Kisumu this 9th day of October 2009.
J. R. KARANJA
JUDGE
JRK/aao