[2009] KEHC 3177 (KLR)
The court found that the amended plaint was filed without the requisite leave of court, rendering it irregular. Furthermore, no substitution had been made for the deceased 1st plaintiff, and no leave was sought to enjoin the 2nd plaintiff. As a result, the court ordered the amended plaint struck out and awarded...
Source-derived case information.
- Citation
- [2009] KEHC 3177 (KLR)
- Parties
- Plaintiff: Johnson Makori Onduko; Plaintiff: Bernard Gesora Makori; Defendant: Cooperative Merchant Bank Ltd; Defendant: Emerg Investment Limited
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 46 of 2008
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Amended Plaint
- Outcome
- Amended plaint struck out; costs awarded to applicant/2nd defendant; main plaint remains on record.
- Legal Topics
- Striking Out Pleadings, Amendment of Pleadings, Substitution of Parties, Specific Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Johnson Makori Onduko
Plaintiff
Bernard Gesora Makori
Plaintiff
Cooperative Merchant Bank Ltd
Defendant
Emerg Investment Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Amended Plaint
Legal Issues
- 1 Whether the amended plaint should be struck out for lack of leave of court.
- 2 Whether substitution of the deceased plaintiff was necessary and properly effected.
- 3 Whether the main plaint should remain on record despite the irregular amendment.
Ratio Decidendi
The court found that the amended plaint was filed without the requisite leave of court, rendering it irregular. Furthermore, no substitution had been made for the deceased 1st plaintiff, and no leave was sought to enjoin the 2nd plaintiff. As a result, the court ordered the amended plaint struck out and awarded costs to the applicant/2nd defendant. The main plaint was allowed to remain on record as requested by the respondents, but the procedural irregularities regarding amendment and substitution were determinative.
Court Disposition
Amended plaint struck out; costs awarded to applicant/2nd defendant; main plaint remains on record.
Orders
- The amended plaint is struck out for want of leave of court.
- Costs awarded to the applicant/2nd defendant.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KERICHO
Civil Suit 46 of 2008
JOHNSON MAKORI ONDUKO …………........…………} PLAINTIFFS
BERNARD GESORA MAKORI ……………………..}
VERSUS
COOPERATIVE MERCHANT BANK LTD …………} DEFENDANTS
EMERG INVESTMENT LIMITED ……………………}
RULING
NO. 1
I: Civil Practice and Procedure
1. The main suit herein concerns land. It is land situated in Kericho being LR. 631/IV/60 whereby there existed a sale agreement. The plaintiffs wished to have specific performance.
2. The main suit was originally filed in Nairobi. It came before me when on 19th April, 2009 I was informed that the plaintiff No. 1 had passed away. No substitution had been effected.
3. The respondents/plaintiffs advocate stated he now had instructions on the matter. He agreed no action had been taken in this matter. He then admitted and stated that the awards to a plaint filed herein was done without the leave of the court.
II: Application to struck out amended plaint
4. The applicants/respondents prays through the Chamber Summons 24th June, 2009 application to have the amended plaint struck out.
5. The respondent conceeds but to be given leave to have the main plaint remain in place.
III: Findings
6. No. leave has been sought to file the amended plaint. There has been no substitution of 1st plaintiff although the 1st plaintiff having died held a power of Attorney. No leave was used or applied to enjoin the 2nd plaintiff.
7. I award costs to the applicant/2nd defendants.
DATEDthis 19th day of February, 2009 at KERICHO
M.A. ANG’AWA
JUDGE
Advocates
S.K. Bundotich advocate instructed by M/S Kale Maina & Bundotich advocate for the 2nd defendant/Applicant – present
C.O. Odongo advocates from Ochichi & Co. advocates instructed to hold brief for M/S Muthaura Kiome & Mwarania advocates and Aminga Opiyo & Masese advocates for the 1st and 2nd Plaintiff/Respondents respectively – present
N/A for M/S Kyalo & Associates advocate for the 1st defendant