[2009] KEHC 497 (KLR)
The court held that amendments to pleadings before hearing should be allowed unless they cause injustice that cannot be compensated by costs. In this case, the court found no prejudice to the plaintiff that could not be remedied by an order of costs. The grounds of opposition raised by the plaintiff could be...
Source-derived case information.
- Citation
- [2009] KEHC 497 (KLR)
- Parties
- Plaintiff: Kamau Kania; Defendant: Patrick Rerimoi; Defendant: Mary Nduta Kagwima
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 90 of 1997
- Procedural Posture
- Civil Suit / Ruling on Application to Amend Defence and File Counterclaim
- Outcome
- Application allowed. Leave granted to 2nd defendant to amend defence and file counterclaim. Corresponding leave to plaintiff and 1st defendant to amend pleadings. Costs to plaintiff against 1st defendant.
- Legal Topics
- Amendment of Pleadings, Counterclaim, Leave of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamau Kania
Plaintiff
Patrick Rerimoi
Defendant
Mary Nduta Kagwima
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Amend Defence and File Counterclaim
Legal Issues
- 1 Whether the 2nd defendant should be granted leave to amend her defence and file a counterclaim.
- 2 Whether the amendment would cause prejudice to the plaintiff that cannot be compensated by costs.
Ratio Decidendi
The court held that amendments to pleadings before hearing should be allowed unless they cause injustice that cannot be compensated by costs. In this case, the court found no prejudice to the plaintiff that could not be remedied by an order of costs. The grounds of opposition raised by the plaintiff could be addressed in subsequent pleadings. Therefore, the court granted the 2nd defendant leave to amend her defence and file a counterclaim, and gave corresponding leave to the plaintiff and 1st defendant to amend their pleadings. Costs of the application were awarded to the plaintiff against the 1st defendant.
Court Disposition
Application allowed. Leave granted to 2nd defendant to amend defence and file counterclaim. Corresponding leave to plaintiff and 1st defendant to amend pleadings. Costs to plaintiff against 1st defendant.
Orders
- 2nd defendant granted leave to file amended defence and counterclaim within fifteen (15) days.
- Plaintiff and 1st defendant granted leave to amend their pleadings within fifteen (15) days of service of the 2nd defendant's amended defence and counterclaim.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Civil Suit 90 of 1997
KAMAU KANIA……………………….......……….PLAINTIFF
VERSUS
PATRICK RERIMOI………………...………1ST DEFENDANT
MARY NDUTA KAGWIMA………….…….2ND DEFENDANT
RULING
The 2nd defendant seeks by her chamber summons dated 6th May 2009 and brought under Order 6A Rules 3 & 9 of the Civil Procedure Rules leave of this court to amend her defence and file a counter claim. She claims that this has been necessitated by the plaintiff’s fraudulent acts of December 2006 which led to the demolition of her house. She intends to counterclaim for the value of the demolished house and loss of household items.
In his grounds of opposition the plaintiff opposes the application inter alia as being an afterthought and bad in law.
Applications for amendment of pleadings especially those coming before the hearing are invariably allowed if they can be made without injustice to the other side and there is no injustice if the other side can be compensated by an order of costs –Eastern Bakery Vs Castelino [1958] EA 461.
In this case I agree with counsel for the 2nd defendant that the other points raised in the grounds of opposition are points that can be raised in the reply to defence and defence counter claim. I cannot see any prejudice that will be caused to the plaintiff which cannot be remedied by an order of costs. Consequently I allow this application and order that the 2nd defendant has leave to file her amended defence within fifteen (15) days of the date hereof. The plaintiff and the 1st defendant have corresponding leave to amend their pleadings within fifteen (15) days of service of the 2nd defendant’s amended defence and counter claim. The plaintiff shall have costs of this application against the 1st defendant.
DATED and delivered this 18th day of November, 2009.
D. K. MARAGA
JUDGE.