[2011] KEHC 2774 (KLR)
The court found that the proposed amendment to include a prayer for eviction did not introduce a new cause of action and would not prejudice the defendant/respondent. The court emphasized that amendments should be allowed if they do not cause injustice to the other party, and any inconvenience can be compensated by...
Source-derived case information.
- Citation
- [2011] KEHC 2774 (KLR)
- Parties
- Applicant: Jotham Andanje Andai; Respondent: Charles Eliuba Okuta
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 126 of 2000
- Procedural Posture
- Civil Case / Ruling on Application to Amend Plaint
- Outcome
- application granted
- Legal Topics
- Amendment of Pleadings, Eviction Prayer, Leave to Amend, Trespass to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Jotham Andanje Andai
Applicant
Charles Eliuba Okuta
Respondent
Procedural Posture
Civil Case / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff/applicant should be granted leave to amend the plaint to include a prayer for eviction.
- 2 Whether the proposed amendment would prejudice the defendant/respondent or introduce a new cause of action.
Ratio Decidendi
The court found that the proposed amendment to include a prayer for eviction did not introduce a new cause of action and would not prejudice the defendant/respondent. The court emphasized that amendments should be allowed if they do not cause injustice to the other party, and any inconvenience can be compensated by costs. The plaintiff/applicant had established that the amendment was necessary for the proper determination of the real issues in controversy. Consequently, the court granted leave to amend the plaint, with the condition that the amended plaint be filed within 14 days and the defendant/respondent be allowed to amend his defence within 14 days of service. Costs were awarded to...
Court Disposition
application granted
Orders
- Leave to amend the plaint is granted.
- The amended plaint shall be filed within 14 days of the ruling.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL CASE NO. 126 OF 2000
JOTHAM ANDANJE ANDAI...................................................................PLAINTIFF/APPLICANT
VERSUS
CHARLES ELIUBA OKUTA............................................................DEFENDANT/RESPONDENT
RULING
1. The Application dated 21. 4.2010 seeks orders to amend the Plaint and it is premised on Order 6A Rule 3 of the Civil Procedure Rules. The only ground in support and which is replicated in the short Supporting Affidavit sworn on 21. 4.2010 by the Plaintiff/Applicant is that “it is important ………..to include a prayer for eviction which is not pleaded in [the] original Plaint”.
2. In a brief and concise Replying Affidavit sworn on 28. 6.2010, the Defendant/Respondent, Charles Eliuba Okute, depones that the Application is defective, is devoid of merit and was brought late (after 9 years) and should be dismissed with costs.
3. Is there merit in the Application? In Standard Chartered Bank [K] Ltd. vs Malindi Engineering Works Ltd. & 4 others – Msa HCCC 22/93, Wambilianga, J.quoted with approval the decision of Brett M. R. in Clarapede vs Commercial Union Association [1883] 32 Q.R. 262 where the learned judge stated as follows;
“However negligent or careless may have been the first commission, and however late the proposed amendment, the amendment should be allowed if it can be done without prejudice to the other side. There is no injustice if the other side can be compensated by costs.”
4. He then added;
“the object of the court is to decide the rights of parties and not to punish them for the mistakes they make in the conduct of their cases.”
5. I wholly agree and in the matter before me, the Plaintiff/Applicant has made the point in the Plaint filed on 10. 7.2000 that he is the registered proprietor of land parcel No. Butsotso/Ingotse/1891 and that the Defendant/Respondent is a trespasser therein. The proposed amendment does not in any way add any new cause of action neither does it in any way prejudice the Respondent.
6. In the event, I am satisfied that there is no strong and credible reason put before me to warrant a denial of the leave to amend the Plaint. I will grant the same and an Amended Plaint shall be filed within 14 days of today’s date and the Defendant will be at liberty to amend his Defence within 14 days of service of the Amended Plaint.
7. Costs shall be paid to the Defendant in any event.
8. Orders accordingly.
Delivered, dated and signed at Kakamega this 14th day of April, 2011.
ISAAC LENAOLA
J U D G E