[2009] KEHC 2839 (KLR)
The court found that the application to amend the plaint was merited because the parcel number had changed following subdivision, and it was necessary to amend the pleadings to reflect the correct property in dispute. The amendment would serve the interests of justice and would not prejudice the absent respondent,...
Source-derived case information.
- Citation
- [2009] KEHC 2839 (KLR)
- Parties
- Plaintiff: Kuria Njuguna Kiongo; Defendant: Priscilla Wanjiru
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 120 of 2006
- Procedural Posture
- Civil Suit / Ruling on Application to Amend Plaint
- Outcome
- Application granted in terms of prayer one only. Costs in the cause.
- Judges
- CA Ombija
- Legal Topics
- Amendment of Pleadings, Change of Land Parcel Number, Ex Parte Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kuria Njuguna Kiongo
Plaintiff
Priscilla Wanjiru
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint to reflect the changed parcel number.
- 2 Whether it is necessary and in the interests of justice to allow the amendment.
Ratio Decidendi
The court found that the application to amend the plaint was merited because the parcel number had changed following subdivision, and it was necessary to amend the pleadings to reflect the correct property in dispute. The amendment would serve the interests of justice and would not prejudice the absent respondent, who had been duly served but failed to attend. The court exercised its discretion to allow the amendment, granting leave to amend the plaint as sought in prayer one of the application. Costs were ordered to be in the cause.
Court Disposition
Application granted in terms of prayer one only. Costs in the cause.
Orders
- Leave is granted to the plaintiff to amend his plaint in terms of the proposed amended plaint.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
Civil Suit 120 of 2006
KURIA NJUGUNA KIONGO......................................PLAINTIFF
VERSUS
PRISCILLA WANJIRU.............................................DEFENDANT
R U L I N G
By an application by way of chamber summons pursuant to the provisions of order VIA Rule 3 of the Civil Procedure Rules, the applicant seeks orders:
1. That the plaintiff/applicant be granted leave to amend his plaint in terms of proposed amended plaint.
2. Costs be provided for.
The application is based on the grounds:
(a)That the parcel number has changed.
(b)That it is necessary and in the interests of justice for the plaint to be amended.
The application is predicated upon the annexed affidavit of Kuria Njuguna sworn on the 12th day of August 2008.
The application was served upon the respondent, Priscilla Wanjiru, as per the affidavit of Raphael Nyongesa Simiyu sworn on 11th March 2008. The respondent failed to attend the hearing.
On behalf of the applicant, it was argued that the parcel of land was initially plot No. 96, Kipsoen Scheme. Later he sub-divided the land. The resultant numbers were registered as Trans-Nzoia/Kipsoen/557. A search certificate in respect thereof is attached as exhibit “KN1”.
On application I granted the applicant leave to proceed ex-parte.
I have scanned through the application and taken the view that it is merited.
Accordingly the application is granted in terms of prayer one (1) only. Costs shall be in the cause.
Dated and delivered at Kitale this 4th day of JULY 2009.
N.R.O. OMBIJA
JUDGE
Mrs Munialo for Arunga for Plaintiff