[2002] KEHC 1209 (KLR)

[2002] KEHC 1209 (KLR)

The court held that while a verifying affidavit is not required to accompany an amended plaint, the mandatory requirement under Order 6A Rule 7 Civil Procedure Rules is that every amended pleading must be endorsed with the number of the rule in pursuance of which the amendment was made. The plaintiff's failure to endorse the amended plaint with the relevant rule number rendered the amended plaint incompetent. The omission was not a mere technicality but a fatal defect, and thus the amended plaint was struck out, leaving the original plaint on record. The court found no merit in the argument that the omission was procedural and non-prejudicial, emphasizing the mandatory language of the rule.

Citation
[2002] KEHC 1209 (KLR)
Parties
Plaintiff: Stockman Rozen Kenya Ltd; Defendant: Da Gama Rose Group of Companies Ltd
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
17 January 2002
Case Number
Civil Suit 1168 of 2001
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Amended Plaint
Outcome
Amended plaint struck out for non-compliance with mandatory procedural requirements; original plaint remains on record.
Legal Topics
Amendment of Pleadings, Verifying Affidavit Requirements, Striking Out Pleadings, Procedural Compliance
Source Language
English
Civil Procedure Amendment of Pleadings Verifying Affidavit Requirements Striking Out Pleadings Procedural Compliance

Case Brief

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Parties

Stockman Rozen Kenya Ltd

Plaintiff

Da Gama Rose Group of Companies Ltd

Defendant

Procedural Posture

Civil Suit / Ruling on Application to Strike Out Amended Plaint

Legal Issues

  1. 1 Whether an amended plaint must be accompanied by a verifying affidavit under Order 7 Rule 1(2) Civil Procedure Rules.
  2. 2 Whether failure to endorse the rule number under which an amendment is made on the amended plaint is fatal under Order 6A Rule 7 Civil Procedure Rules.
  3. 3 Whether the amended plaint introducing a new cause of action is permissible before close of pleadings.

Ratio Decidendi

The court held that while a verifying affidavit is not required to accompany an amended plaint, the mandatory requirement under Order 6A Rule 7 Civil Procedure Rules is that every amended pleading must be endorsed with the number of the rule in pursuance of which the amendment was made. The plaintiff's failure to endorse the amended plaint with the relevant rule number rendered the amended plaint incompetent. The omission was not a mere technicality but a fatal defect, and thus the amended plaint was struck out, leaving the original plaint on record. The court found no merit in the argument that the omission was procedural and non-prejudicial, emphasizing the mandatory language of the rule.

Court Disposition

Amended plaint struck out for non-compliance with mandatory procedural requirements; original plaint remains on record.

Orders

  • The amended plaint filed on 27.9.2001 is struck out for failure to comply with Order 6A Rule 7 Civil Procedure Rules.
  • The original plaint remains on record.