[2010] KEHC 1912 (KLR)
The court found that the inclusion of the intended interested party in the application title was not motivated by mischief but by the initial intention to enjoin them in the suit. Since the interested party was not a party to the suit, and given the overriding objective of expeditious and just resolution of...
Source-derived case information.
- Citation
- [2010] KEHC 1912 (KLR)
- Parties
- Plaintiff: Kasimu Sharifu Mohamed; Defendant: Timbi Limited
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 3 of 2007
- Procedural Posture
- Civil Suit / Ruling on Oral Application to Amend Chamber Summons
- Outcome
- oral application for amendment allowed
- Legal Topics
- Amendment of Pleadings, Joinder and Nonjoinder of Parties, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kasimu Sharifu Mohamed
Plaintiff
Timbi Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Oral Application to Amend Chamber Summons
Legal Issues
- 1 Whether the court should allow an oral application to amend the Chamber Summons by deleting the name of the intended interested party from the title.
- 2 Whether the inclusion of the intended interested party in the application was misleading or prejudicial to the defendant.
Ratio Decidendi
The court found that the inclusion of the intended interested party in the application title was not motivated by mischief but by the initial intention to enjoin them in the suit. Since the interested party was not a party to the suit, and given the overriding objective of expeditious and just resolution of disputes, the court held that it would be unnecessarily technical and cause delay to strike out the application and require a fresh one to be filed. The court exercised its discretion under section 100 of the Civil Procedure Act to allow the oral amendment, finding no prejudice would be suffered by the defendant as a result of deleting the name of the intended interested party from the...
Court Disposition
oral application for amendment allowed
Orders
- The name of the intended interested party is deleted from the heading of the Chamber Summons dated 21st April 2010.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
Civil Suit 3 of 2007
KASIMU SHARIFU MOHAMED.....................................................PLAINTIFF
VERSUS
TIMBI LIMITED..............................................................................DEFENDANT
R U L I N G
When this matter came up for hearing, Mr. Mokaya sought to address the court on the basis that he was acting for an interested party.Mr. Ghalia objected and the court upheld the objection.Mr. Otara for the respondent then informed this court that the directions by the court in essence took care of prayer No. 4 of the Chamber Summons dated 21st April 2010.
Mr. Ghalia then submitted that the application was bad and ought not to proceed in its form because it included a party who was not properly before the court (namely the intended interested party) It was his contention that for the application to proceed in its present form would be misleading and mischievous and he proposed that applicants do file a fresh application and that the present application ought to be dismissed with costs.
In response, Mr. Otara prayed that the interested party as appearing in the Title of the application be deleted – so as to fit in with the present.
He invited this court to consider the provisions of section 1A and 1B of the Civil Procedure Act and allow the amendment so as to pave way for the pending application and avoid delay.
Mr. Ghalia objected saying the application ought to be struck out and that in any event it was the applicant who had caused delay.
Basically this is an oral application seeking to amend so as to delete the names of the intended third party, as a consequence of the direction given by this court regarding Mr. Mokaya’s appearance.I am persuaded that when Mr. Otara prepared the application, he had in mind the intention of the said third party to be enjoined in the suit – of course this is even borne out by the content of prayer No. 4 of the application.So that on the onset, inclusion of the intended 3rd interested party in the title of the application was not propelled by any mischief.However the intended interested party is not a party to this suit and that is a fact - why cause longer delays through technical process of striking out, then filing a similar application, just so as to have the name Cyprea Ltd – Interested party removed, when that can so easily be done by the stroke of a pen in the form of deleting the same following an oral request?What prejudice will the defendant suffer by such an amendment?None.In allowing the oral application for amendment, I am guided by section 100 of the Civil Procedure Act.
I allow the amendment by deleting the named intended interested party from the heading of the Chamber Summons dated 21st April 2010.
Delivered and dated this 25th day of May 2010 at Malindi.
H. A. Omondi
LADY JUSTICE
Mr. Angima holding brief for Mr. Maosa
Mr. Lughanje holding brief for Mr. Otara