[2007] KEHC 3076 (KLR)
The court held that the Re-Amended Plaint, being neither dated nor signed, was fatally defective and could not be considered a valid pleading. The court accepted the plaintiff's concession on this point and ordered the striking out of the Re-Amended Plaint. However, the court found no basis to dismiss the suit as a...
Source-derived case information.
- Citation
- [2007] KEHC 3076 (KLR)
- Parties
- Plaintiff: Kofexco Limited; Defendant: Cetco Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 89 of 2004
- Procedural Posture
- Civil Suit / Ruling on Application to Strike Out Re Amended Plaint and Dismiss Suit
- Outcome
- Application to strike out Re-Amended Plaint allowed; application to dismiss suit denied; leave granted to plaintiff to file proper Re-Amended Plaint.
- Judges
- DK Maraga
- Legal Topics
- Striking Out Pleadings, Amendment of Pleadings, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kofexco Limited
Plaintiff
Cetco Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Strike Out Re Amended Plaint and Dismiss Suit
Legal Issues
- 1 Whether the Re-Amended Plaint, being neither dated nor signed, should be struck out as a pleading.
- 2 Whether the suit should be dismissed as a consequence of striking out the Re-Amended Plaint.
- 3 Whether the plaintiff should be granted leave to file a proper Re-Amended Plaint.
Ratio Decidendi
The court held that the Re-Amended Plaint, being neither dated nor signed, was fatally defective and could not be considered a valid pleading. The court accepted the plaintiff's concession on this point and ordered the striking out of the Re-Amended Plaint. However, the court found no basis to dismiss the suit as a consequence, reasoning that the parties should revert to the position they were in prior to the attempted amendment. The court further considered the plaintiff's oral application for leave to file a proper Re-Amended Plaint, noting that the defendant had previously consented to the further amendment. The court granted the plaintiff leave to file and serve a proper further...
Court Disposition
Application to strike out Re-Amended Plaint allowed; application to dismiss suit denied; leave granted to plaintiff to file proper Re-Amended Plaint.
Orders
- The Re-Amended Plaint annexed to the application dated 20th April 2006 is struck out.
- The plaintiff is granted leave to file and serve a proper further amended plaint within fourteen days.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Suit 89 of 2004
KOFEXCO LIMITED …….…….PLAINTIFF/RESPONDENT
-VERSUS-
CETCO LIMITED ………………DEFENDANT/APPLICANT
RULING
The defendant’s application dated 19th September 2006 brought under Order 6 Rules 13 (d) and 14 of the Civil Procedure Rules seeks the striking out of the Re-Amended Plaint and as a consequence thereof the dismissal of this suit. The application is based on the ground that the Re-Amended plaint filed and served upon the defendant being neither dated nor signed is no pleading and should be struck out.
The plaintiff does not oppose the first limb of the application. Its Counsel Mr. Omolo readily concedes that the Re-Amended plaint being neither dated nor signed is fatally defective and should be struck out. He said that the error arose when they filed the application to further amend the plaint to which they annexed the proposed Re-Amended Plaint and prayed that the same be deemed as duly and properly filed upon payment of the requisite court fees. Being an exhibit in that application it was not dated or signed. That application was by consent allowed as prayed and counsel for the plaintiff inadvertently failed to file a dated and signed Re-Amended Plaint
As regards the second limb of the application seeking the dismissal of the suit Mr. Omolo said that cannot be. Once the purported Re-Amended Plaint is struck out the parties rever to the position they were in before that attempted amendment. I concur with that view. There is no basis upon which l should dismiss this suit. The Re-Amended plaint having been of no effect, it did not, as it were, replace the amended plaint that had been filed before. If it had replaced the amended plaint and for some other reasons it was struck out then l would agree that the suit would be dismissed. In the circumstances l hereby strike out the Re-Amended Plaint annexed to the application dated 20th April 2006. The parties shall rely on their pleadings as they stood before the filing of the purported Re-Amended Plaint.
The Plaintiff through the replying affidavit of its advocates and in the oral submissions he made in court sought leave to file a proper Re-Amended Plaint. Mr. Nyachoti, counsel for the defendant did not address that aspect of the matter. Bearing in mind the fact that the defendant had consented to the further amendment of the plaint l allow the plaintiff’s oral application and order that it shall file and serve a proper further amended plaint within fourteen days. The defendant has also leave to file an amended or further amended defence within 14 days of service of the further amended plaint.
The costs of this application and those the defendant shall incur in filing an amended defence shall be born by the plaintiff.
DATED and delivered this 21st day of February 2007.
D.K. MARAGA
JUDGE
21. 2.2007
Before Maraga Judge
Buti for Nyachoti for applicant
Omolo for respondent
Court clerk – Mitoto
Court – Ruling delivered in Chambers.
D.K. MARAGA
JUDGE