[2005] KEHC 471 (KLR)
The court found that the re-amended defence as served was defective for failing to comply with the requirements of Order 6A rule 7(2) of the Civil Procedure Rules. However, the court exercised its discretion under Order 6A rule 6 to extend the time for the defendant to file a compliant re-amended defence within...
Source-derived case information.
- Citation
- [2005] KEHC 471 (KLR)
- Parties
- Plaintiff: Lila Vadgama; Defendant: City Panel Beaters & Painters Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1073 of 2001
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Defence and Enter Judgment
- Outcome
- Application dismissed with extension of time granted to the defendant to file a compliant re-amended defence.
- Judges
- PJ Ransley
- Legal Topics
- Amendment of Pleadings, Striking Out Defence, Court Discretion, Non Compliance With Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Lila Vadgama
Plaintiff
City Panel Beaters & Painters Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Defence and Enter Judgment
Legal Issues
- 1 Whether the re-amended defence filed by the defendant complied with the court's order and the Civil Procedure Rules.
- 2 Whether the court should strike out the re-amended defence and enter judgment for the plaintiff.
- 3 Whether the court should exercise its discretion to extend time for filing a compliant defence.
Ratio Decidendi
The court found that the re-amended defence as served was defective for failing to comply with the requirements of Order 6A rule 7(2) of the Civil Procedure Rules. However, the court exercised its discretion under Order 6A rule 6 to extend the time for the defendant to file a compliant re-amended defence within fourteen days from the date of the ruling. The court declined to strike out the defence or enter judgment for the plaintiff at this stage, holding that the issues raised regarding the substance of the defence and the conjunction 'or' were matters for determination at trial. The application was occasioned by the respondent's default, and costs were awarded to the applicant.
Court Disposition
Application dismissed with extension of time granted to the defendant to file a compliant re-amended defence.
Orders
- Time for filing and serving a compliant re-amended defence extended by 14 days from the date of the ruling.
- The re-amended defence must comply with the order of Mwera J. and Order 6A rule 7(2) of the Civil Procedure Rules.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 1073 of 2001
LILA VADGAMA ………………………..……........................…….....PLAINTIFF
VERSUS
CITY PANEL BEATERS & PAINTERS LTD.……....................……DEFENDANT
RULING
In his amended Chamber Summons of the 4. 11. 2005 the Applicant seeks the following orders:-
THAT two Re-amended defence/s dated the 20th March, 2003 be struck out, and judgement be entered for the plaintiff for as prayed for in the plaint, namely Shs.1,401,000. 00 interest at court rates and costs.
Mr. Vadgama who is the Applicant grounded his application on the fact that re-amended Defence allowed to be filed by Mr. Justice Mwera in his ruling of the 11. 3.2003 did not comply with either the ruling or the Rules in that the first re-amended Defence served on Mr. Vadgama did not comply with Order 6A rule 6 which states as follows:-
“Where the court has made an order giving any party leave to amend, unless that party amends within the period specified or, if no period is specified, within fourteen days, the order shall cease to have effect, without prejudice to the power of the court to extend the period.”
Further that under Order 6A rule 7(2) which states:-
“All amendments shall be shown by striking out in red ink all deleted words, but in such a manner as to leave them legible, and by underlining in red ink all added words.”
The Re-amended Defence did not comply with this rule in that it was a photocopy. Subsequently a re-amended Defence was served which was in an original form but this did not bear a court stamp showing it had been filed.
Further that the re-amended Defence offended the provisions of section 49 of the Advocates Act which states:-
“no judgement shall be entered for the plaintiff, except by consent, until the costs have been taxed and certified by the taxing officer;”
It was Mr. Vadgama’s submission that the defence of reasonableness or quantum were in the alternative.
Mr. Mogeni for the Respondent referred to the ruling of Mr. Justice Mwera and submitted that the Defendant had been allowed to retain paragraph 8(b) of the Defence which was the paragraph which Mr. Vadgama had submitted was in contravention of section 49(a) of the Advocates Act.
It would appear that this sub paragraph of the Defence was not ordered to be struck out.
This is not the proper forum to make a finding on the submission of Mr. Vadgama on this fact, as this is a matter for the Judge hearing the case in due course. The question will be whether the word “or” between the words reasonableness and quantum is disjunctive or conjunctive.
There has been considerable delay in this matter coming for hearing relating to matters, which took place in 2003. However, that delay cannot be imputed to the Respondent.
I agree with Mr. Vadgama that under the provision of Order 6A rule 7 that the re-amended Defence was defective as served for the reasons stated by him. However, Order 6A rule 6 gives the court discretion to extend the period within which an amended pleading may be amended. I, therefore, in exercise of my discretion, extend the time for making the amendments for 14 days from today. In that time the re-amended Defence is to be filed in compliance with the order of Mwera J. and Order 6 rule 7(2) and served on the Applicant.
The application has been occasioned by the default of the Respondent and I award the costs to the Applicant in any event.
Dated and delivered at Nairobi this 2nd day of March, 2005.
P. J. RANSLEY
JUDGE