[2008] KEHC 3026 (KLR)
The court found that the proposed amendments did not introduce new or statute-barred claims but merely particularized the plaintiffs' existing claims. Since the suit had not been heard and any prejudice to the defendant could be compensated by costs, the court exercised its discretion to allow the amendment. The...
Source-derived case information.
- Citation
- [2008] KEHC 3026 (KLR)
- Parties
- Plaintiff: Lawi Duda & 21 Others; Defendant: Bamburi Cement Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 528 of 1998
- Procedural Posture
- Civil Case / Ruling on Application to Further Amend Plaint
- Outcome
- application allowed
- Legal Topics
- Amendment of Pleadings, Limitation of Actions, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawi Duda & 21 Others
Plaintiff
Bamburi Cement Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Further Amend Plaint
Legal Issues
- 1 Whether the plaintiffs should be granted leave to further amend the plaint.
- 2 Whether the proposed amendments introduce claims that are statute barred under the Limitation of Actions Act.
- 3 Whether the defendant will suffer prejudice if the amendment is allowed.
Ratio Decidendi
The court found that the proposed amendments did not introduce new or statute-barred claims but merely particularized the plaintiffs' existing claims. Since the suit had not been heard and any prejudice to the defendant could be compensated by costs, the court exercised its discretion to allow the amendment. The application was therefore allowed, with directions for filing and serving the further amended plaint and corresponding leave for the defendant to amend its defence.
Court Disposition
application allowed
Orders
- Plaintiffs to file and serve further amended plaint within twenty one days.
- Defendant granted leave to amend its defence within fifteen days of service of the further amended plaint.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Case 528 of 1998
LAWI DUDA & 21 OTHERS..........................PLAINTIFFS
VERSUS
BAMBURI CEMENT LIMITED..........................DEFENDANT
**********************
RULING
The Plaintiffs’ Chamber Summons dated 30th November 2005 brought under Order 6A Rules 3, 7 and 8 of the Civil Procedure Rules as well as under Section 3A of the Civil Procedure Act seeks leave of this court to further amend the plaint. It is opposed on the grounds that it has been brought after inordinate delay and that the claims being introduced by the proposed amendment are time barred under the Limitation of Actions Act.
Having perused the proposed amendment I do not agree with counsel for the defendant that the amendment seeks to introduce claims that are statute barred. Besides describing the plaintiffs individually the proposed amendments simply particularizes the plaintiffs’ claims. That is not the same as introducing new claims.
The suit has not been heard and I do not see any prejudice that will be caused to the defendant that cannot be compensated by an award of costs – Eastern Bakery –Vs - Castelino [1958] EA 461.
I therefore allow the application and order that the plaintiffs shall file and serve their further amended plaint within twenty one days of the date hereof. The defendant has corresponding leave to amend its defence within 15 days of service of the further amended plaint. Costs to the defendant in any event.
DATED and delivered this 11th day of January 2008.
D.K. MARAGA
JUDGE