[2001] KEHC 549 (KLR)
The court held that the re-amended plaint was filed without the necessary leave of court, contrary to Order 6A rule 1 of the Civil Procedure Rules, which only allows one amendment without leave. As such, the re-amended plaint is not validly before the court and must be expunged from the record. The amended plaint...
Source-derived case information.
- Citation
- [2001] KEHC 549 (KLR)
- Parties
- Plaintiff: Kenya Projects & Investments Limited; Defendant: Kenya Post Office Savings Bank; Defendant: Kenya Post Office Savings Bank Retirement Benefit Scheme; Defendant: The Commissioner of Lands
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2811 of 1995
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection Regarding Validity of Re Amended Plaint
- Outcome
- preliminary objection upheld; re-amended plaint expunged; liberty to apply for leave to re-amend; costs to respondents
- Legal Topics
- Pleadings Amendment, Leave of Court, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Projects & Investments Limited
Plaintiff
Kenya Post Office Savings Bank
Defendant
Kenya Post Office Savings Bank Retirement Benefit Scheme
Defendant
The Commissioner of Lands
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection Regarding Validity of Re Amended Plaint
Legal Issues
- 1 Whether a re-amended plaint filed without leave of the court is valid and can remain on the court record.
- 2 Whether the plaintiff can cure the defect by seeking leave after the fact.
Ratio Decidendi
The court held that the re-amended plaint was filed without the necessary leave of court, contrary to Order 6A rule 1 of the Civil Procedure Rules, which only allows one amendment without leave. As such, the re-amended plaint is not validly before the court and must be expunged from the record. The amended plaint remains on record until the plaintiff applies for and is granted leave to re-amend. The court clarified that the invalid re-amended plaint cannot overtake the amended plaint, and only validly filed pleadings can be considered part of the court record. The plaintiff is at liberty to apply for leave to re-amend the plaint if it so wishes. Costs of the preliminary objection are...
Court Disposition
preliminary objection upheld; re-amended plaint expunged; liberty to apply for leave to re-amend; costs to respondents
Orders
- The re-amended plaint is expunged from the court record.
- The amended plaint remains on record.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO.2811 OF 1995
KENYA PROJECTS &INVESTMENTS LIMITED………………………………….PLAINTIFF VERSUS KENYA POST OFFICE SAVINGS BANK………………………………………..1ST DEFENDANT KENYA POST OFFICE SAVINGS BANK RETIREMENT BENEFIT SCHEME…………………………………..2ND DEFENDANT THE COMMISSIONER OF LANDS………………..3RD DEFENDANT
RULING
The Re-amended Plaint was admittedly filed without leave of the court. The Plaintiff had amended his Plaint once under Order 6A rule 1 of the Civil Procedure Rules and could not amend the Plaint further without leave of the act. The Plaintiff admits this freely. It however concedes that the mistake is curable by allowing it leave to file a re-amended Plaint and to that effect he is seeking that the present-amended Plaint should remain in the court records till he files such a re-amended Plaint. I have perused the authorities before me. The correct position as I understand it is that there is no re-amended Plaint validly before me as the law does not allow Plaintiff to file a re-amended Plaint or pleading without the leave of the court. I think the correct position is that the re-amended plaint in court file must be expunged from the court record.
That will meant hat the amended Plaint iswhat will be on record till the Plaintiff applies (if he applies and is granted leave to re-amend it. I say the amended Plaint will remain on the record because as there-amended Plaint is not validly before the court it could not have overtaken the amended |Plaint and the re-amended Plaint cannot be said to be the one now on record as it is not a valid document. I do expunge from the record the Re-amended Plaint. The Plaintiff is at liberty to apply to have the present amended plaint re-amended if it so wishes. Costs of the Preliminary Objection to the respondents.
Dated at Nairobi this 15th day of March 2001.
ONYANGO OTIENO
Judge