[2011] KEHC 3776 (KLR)
The court found that the Plaintiffs had established sufficient grounds to amend the Plaint to correct the Defendant's capacity from registered owner to beneficial and/or insured owner of the motor vehicle. The amendment was necessary to ensure the real issues in controversy were determined and there was no evidence...
Source-derived case information.
- Citation
- [2011] KEHC 3776 (KLR)
- Parties
- Plaintiff: Joram Thuo; Plaintiff: Samuel Mbugua; Defendant: Kay Lift Services
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 39 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Amend Plaint
- Outcome
- Application to amend plaint allowed.
- Legal Topics
- Amendment of Pleadings, Capacity of Parties, Beneficial Ownership, Road Traffic Accidents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joram Thuo
Plaintiff
Samuel Mbugua
Plaintiff
Kay Lift Services
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the Plaintiffs should be granted leave to amend the Plaint to correct the description of the Defendant's capacity regarding ownership of the motor vehicle.
- 2 Whether the amendment would prejudice the Defendant.
Ratio Decidendi
The court found that the Plaintiffs had established sufficient grounds to amend the Plaint to correct the Defendant's capacity from registered owner to beneficial and/or insured owner of the motor vehicle. The amendment was necessary to ensure the real issues in controversy were determined and there was no evidence of prejudice to the Defendant, who had been served but did not oppose the application. The court exercised its discretion in favour of allowing the amendment, guided by the principle that amendments should be permitted to facilitate the just determination of the matters in dispute, so long as no injustice or prejudice is occasioned to the other party.
Court Disposition
Application to amend plaint allowed.
Orders
- The Summons dated 11th August 2010 is allowed as prayed.
- Costs of the application to abide the outcome of the suit.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CIVIL CASE NO. 39 OF 2002
JORAM THUO…………………………………………………….….1STPLAINTIFF
VERSUS
SAMUEL MBUGUA………..……...………………………..……2ND PLAINTIFF VERSUS
KAY LIFT SERVICES…………...........……………………………………….DEFENDANT
RULING
Pursuant to the provisions ofOrder VIA rules 3, 5and 8of the Civil Procedure (now under Order 8), JORAM THUO and SAMUEL MBUGUA, the 1st and 2nd Plaintiffs respectively, took out the summons dated 11th August 2010, in which they sought for leave to amend the Plaint. The Summons is supported by the affidavit of Samuel Mbugua Mutahi. There is evidence showing that the Summons was served upon the advocates for Kay Lift Services, the Defendant herein. The Plaintiffs were granted leave to prosecute the application exparte when it became evident that neither the defendant nor its advocates attended court for the interpartes hearing of the Summons, despite having been served with a hearing notice.
The Plaintiffs have stated on the face of the application that they wish to have the Plaint amended to correct the erroneous impression that Kay Lift Services, the defendant herein, was the registered owner of Motor Vehicle registration No. KAJ 350L. The Plaintiffs aver that they have now discovered that the Defendant is the actual beneficial and or the insured owner of the aforesaid motor vehicle.
I have considered the Plaintiffs application for amendment. They are basically seeking for leave to correct the capacity of the Defendant in these proceedings. The background of this suit can easily be deduced from the pleadings. On the 21st day of August 1999, the Plaintiffs herein were involved in a road traffic accident while on board motor vehicle registration No. KAJ 350L. In the initial Plaint, the Plaintiffs sued the Defendant for damages for the injuries they sustained as a result of the accident claiming it was the registered owner of the motor vehicle. The Defendant filed a defence denying ownership of the same in its defence filed on 22nd April 2002. The Plaintiffs have now discovered that the Defendant is actually not the registered owner of the aforesaid motor vehicle. Annexed to the affidavit of Samuel Mbugua Mutahi, is a copy of the records relating to motor vehicle registration No. KAJ 350L obtained from the Kenya Revenue Authority dated 5th May 2003 which shows that the motor vehicle is owned by Stephen Kihoro Thuo. It is the Plaintiffs’ submission that the Defendant herein was the beneficial and or insured owner of the motor vehicle. The general principle to be taken into account in dealing with such an application is that the amendments should be allowed to correct the error to enable the court determine the real issues in controversy, so long as the other side is not prejudiced. There is no evidence that the Defendant will be prejudiced in any way if the order is granted. I allow the Summons dated 11th August 2010 as prayed with costs abiding the outcome of the suit.
Dated and delivered at Nyeri this 11th day of February 2011.
J. K. SERGON
JUDGE
In open court in the presence of Mr. Wahome holding brief Gachihi for Plaintiff.