[2010] KEHC 3721 (KLR)
The court found that the application for leave to file a further amended plaint was procedurally defective as it was brought under the wrong provision of the Civil Procedure Rules and failed to comply with the requirements for indicating amendments. The draft further amended plaint did not relate properly to the...
Source-derived case information.
- Citation
- [2010] KEHC 3721 (KLR)
- Parties
- Plaintiff: Justus Muriuki; Plaintiff: Geoffrey Murage; Plaintiff: Joseph Kinyua; Plaintiff: Peter Nyaga; Plaintiff: Edward Njeru; Plaintiff: Jackton Nyaga; Plaintiff: Hamton Muchangi; Plaintiff: Simeon Kithinji; Defendant: Stephen Muriithi Mugwimi; Defendant: James Kariuki Mugwimi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 39 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Further Amend Plaint and Entry of Death of 1st Plaintiff
- Outcome
- Application dismissed except for entry of death of 1st plaintiff; costs awarded to respondents.
- Judges
- J Karanja
- Legal Topics
- Amendment of Pleadings, Procedural Non Compliance, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justus Muriuki
Plaintiff
Geoffrey Murage
Plaintiff
Joseph Kinyua
Plaintiff
Peter Nyaga
Plaintiff
Edward Njeru
Plaintiff
Jackton Nyaga
Plaintiff
Hamton Muchangi
Plaintiff
Simeon Kithinji
Plaintiff
Stephen Muriithi Mugwimi
Defendant
James Kariuki Mugwimi
Defendant
Procedural Posture
Civil Case / Ruling on Application to Further Amend Plaint and Entry of Death of 1st Plaintiff
Legal Issues
- 1 Whether the applicant should be granted leave to file a further amended plaint.
- 2 Whether the court should enter on record that the 1st plaintiff is deceased.
- 3 Whether the application was brought under the correct provisions of the Civil Procedure Rules.
Ratio Decidendi
The court found that the application for leave to file a further amended plaint was procedurally defective as it was brought under the wrong provision of the Civil Procedure Rules and failed to comply with the requirements for indicating amendments. The draft further amended plaint did not relate properly to the previous amended plaint and did not incorporate all prior amendments as required. The court noted that the applicant had repeated the same procedural errors previously pointed out and had ignored the court's earlier guidance. Consequently, the application was dismissed except for the prayer to record the death of the 1st plaintiff, which was allowed.
Court Disposition
Application dismissed except for entry of death of 1st plaintiff; costs awarded to respondents.
Orders
- Prayer for entry of death of 1st plaintiff is allowed.
- Application for leave to file further amended plaint is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 39 of 2008
JUSTUS MURIUKI………………………………1ST PLAINTIFF/RESPONDENT
GEOFFREY MURAGE…………………………2ND PLAINTIFF/RESPONDENT
JOSEPH KINYUA………………………………3RD PLAINTIFF/RESPONDENT
PETER NYAGA………………………………….4TH PLAINTIFF/RESPONDENT
EDWARD NJERU……………………………….5TH PLAINTIFF/RESPONDENT
JACKTON NYAGA………………………………6TH PLAINTIFF/RESPONDENT
HAMTON MUCHANGI………………………..7TH PLAINTIFF/RESPONDENT
SIMEON KITHINJI…………………………….8TH PLAINTIFF/RESPONDENT
VERSUS
STEPHEN MURIITHI MUGWIMI……………………………1ST DEFENDANT
JAMES KARIUKI MUGWIMI………………………………….2ND DEFENDANT
R U L I N G
The application before me is the one dated 28th July 2009. Mr. Kariithi for the applicant seeks leave to file a further amended plaint. He has another prayer that the court causes an entry on the record that the 1st plaintiff is dead.
The application is opposed strongly by both counsel for the respondents save for the first prayer for the entry that the plaintiff is dead. I will allow prayer (a) for whatever it is worth.
I have considered the rest of the application, the 3 grounds on its face and the rival affidavits herein. I agree with both counsel that the application is brought under the wrong provisions of the law as it is pegged on Order VI A Rule 1 which deals with Applications for amendment without the leave of the court. It ought to have been brought under Order VI A Rule 3 (1) of the Civil Procedure Rules.
A previous application for amendment was disallowed and the draft amended defence struck out on 30/6/2009. One of the reasons I struck out the said Amended plaint was the non-compliance with Order VIA Rule 7 (2). Mr. Kariithi has now repeated the same mistake. He has filed a draft further amended defence which does not show the amendments made earlier. I do not intend to repeat the contents of my earlier ruling on the subject. Mr. Kariithi can easily refer to the same. The only difference in the instant application is that this time, he has underlined the intended amendments in green colour. The Green or any other colour should nonetheless come after the underlining or striking out the initial amendments or deletions in red. The draft further amended plaint has no relationship whatsoever with the amended plaint which it seeks to amend further. All amendments after the first plaint must be brought on board in the draft amended plaint and that is why the rules even provides for the further amendments to be done in a colour other than red.
Mr. Kariithi totally ignored my observations in the earlier ruling. It disappoints me to do the same thing all over again but I must dismiss this application save for prayer (a). The same is therefore dismissed with costs once again to counsel for the 2 Respondents.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 2nd day of March 2010.
In presence of:-All counsel herein.