[2004] KEHC 437 (KLR)
The court found that the reply to defence had been filed and was on record at the time the defendant applied to amend the defence. The court had already granted leave to the plaintiff to amend the reply to defence, which presupposed the existence of the original reply. The defendant's counsel did not raise the issue...
Source-derived case information.
- Citation
- [2004] KEHC 437 (KLR)
- Parties
- Plaintiff: Kasolo Mutiso; Defendant: Peter Mbai Kisilu
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 129 of 1999
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- RPV Wendoh
- Legal Topics
- Pleadings Amendment, Service of Pleadings, Preliminary Objection, Reply to Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kasolo Mutiso
Plaintiff
Peter Mbai Kisilu
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the amended reply to defence is properly on record and valid as a pleading.
- 2 Whether the defendant was properly served with the original reply to defence and if lack of service invalidates the amended reply.
- 3 Whether the preliminary objection to the amended reply to defence should be upheld or dismissed.
Ratio Decidendi
The court found that the reply to defence had been filed and was on record at the time the defendant applied to amend the defence. The court had already granted leave to the plaintiff to amend the reply to defence, which presupposed the existence of the original reply. The defendant's counsel did not raise the issue of service at the time of the amendment application or in the intervening period of over a year and a half. The court held that the defendant was aware of the reply to defence and cannot now object to its existence or service. The amendment was therefore properly allowed and the amended reply to defence is validly on record. The preliminary objection was found to be without...
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- Defendant to pay court adjournment fees.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL CASE NO. 129 OF 1999
KASOLO MUTISO ::::::::::::::::::::::::::::::::::::::: PLAINITIFF
VERSUS
PETER MBAI KISILU :::::::::::::::::::::::::::::::: DEFENDANT
R U L I N G
When this case up for hearing on 17. 3.2004 the Counsel for the defendant raised an objection to the validity of the pleaded reply to the amended defence dated 26. 6.2002. He contends that the original reply to defence filed on 13. 6.2002 was not served on the defence. He contends that the amended reply to defence is irregularly on record because there had been no reply to defence to be amended. He further contends the purported amended reply to defence is not a pleading and should be struck off the record and matter to proceed with no reply to amended defence.
In response Mrs. Nzei for plaintiff states that when they were served with the plaint defendant entered appearance on 6. 11. 1999 in person and the plaintiff filed a reply to defence dated 10. 4.1999 and filed in court on 15. 4.1999 and it was served on defendant in person. That the Counsel now on record came on record after pleadings had closed on 22. 9.1999 and applied to amend the defence. Application for amendment was heard and ruling given on 6. 6.2002 when the judge ordered that plaintiff had leave to amend reply to defence and that reply to defence had therefore been filed and therefore the preliminary objection is misguided.
When Mr. Mbithi first raised his objection, his contention was that no reply to defence was ever filed. However after Mrs Nzei pointed out that it is on the file and the court in its ruling of 6. 6.2002 allowed them to amend the reply counsel raised issue of service in his reply – that the reply may be on the file but it was not served.
The fact is that at the time Mr. Mbithi filed his application for amendment of defence a reply to defence had been filed by the defendant acting in person. There was a reply to the defence and that is why the court made the order that plaintiff had leave to file amended reply to defence. Counsel for defendant never raised any issue regarding the reply to defence, that is that the defendant had never been served with it. The ruling was given on 6. 6.2002, 1½ years ago. The plaintiff was not given chance to demonstrate that the reply was served on defendant. Because he never raised the issue within that time the court will find that he was aware of the reply to defence filed on 15. 4.1999 and can not be heard to object to it at this stage. The amendment was allowed by court and is properly on record and it will be considered as one of the pleadings. The objection raised is misguided and dismissed. Defendant to pay court adjournment fees and plaintiffs costs for the day.
Dated, read and delivered at Machakos this 27th day of April, 2004.
R. V. WENDOH
JUDGE