[2011] KEHC 884 (KLR)
The court held that the leave previously granted to the defendants to amend their defence was not expressly limited to the defence alone. Therefore, the defendants were entitled to include a counter-claim in their amended defence without seeking further or separate leave. The court found that if the issues raised in...
Source-derived case information.
- Citation
- [2011] KEHC 884 (KLR)
- Parties
- Plaintiff: Lucy Wairimu Mwangi; Defendant: Monica Jackline Wambui; Defendant: Pauline Mukuhi Ng’ang’a
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 185 of 2009
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Strike Out Counter Claim
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Amendment of Pleadings, Counter Claims, Leave of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Wairimu Mwangi
Plaintiff
Monica Jackline Wambui
Defendant
Pauline Mukuhi Ng’ang’a
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion to Strike Out Counter Claim
Legal Issues
- 1 Whether leave of court is required to include a counter-claim when amending a defence.
- 2 Whether the counter-claim in the amended defence should be struck out for lack of leave.
- 3 Whether the inclusion of the counter-claim amounts to an abuse of court process.
Ratio Decidendi
The court held that the leave previously granted to the defendants to amend their defence was not expressly limited to the defence alone. Therefore, the defendants were entitled to include a counter-claim in their amended defence without seeking further or separate leave. The court found that if the issues raised in the amended plaint required a response by way of counter-claim, the defendants could not be expected to wait and seek separate leave to respond. As such, the application to strike out the counter-claim was dismissed, and costs were awarded to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to strike out the counter-claim is dismissed.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 185 OF 2009
LUCY WAIRIMU MWANGI.....................................................................................………….PLAINTIFF
- VERSUS –
MONICA JACKLINE WAMBUI …….................................................…..…………….…1ST DEFENDANT
PAULINE MUKUHI NG’ANG’A…………................................................……………….2ND DEFENDANT
R U L I N G
This is a Ruling on the Notice of Motion dated 22nd July 2011 which seeks the striking off of the counter claim in the amended defence dated 6th July 2011 on the grounds that the leave of court for the counter-claim was not sought or granted; and that it amounts to an abuse of the process of the court and that the counter-claim should be disallowed. The application is supported by the affidavit of Aldrin Ojiambo. Counsel for the Applicant Miss Kamau submitted that apart from the said counter-claim being prejudicial to the interests of the Plaintiff. It is also important to adhere to the provisions of law and procedure.
Counsel for the Respondent Mr. Opini opposes the application and submitted that the leave granted to them to amend the defence was sufficient to amend defence and counter-claim and therefore no further or separate leave was required to plead the counter-claim.
I have looked at the application and its opposition. In my view the leave of the court granted to amend the defence did not limit the Defendant to amending the defence only. If issues raised in the amended plaint required a response by way of counter-claim the Defendant could not wait and seek a separate leave to respond.
I therefore, dismiss the application with costs to the Respondent.
It is so ordered.
DATED, READ AND DELIVERED AT NAIROBI
THIS 2ND DAY OF NOVEMBER 2011.
E. K. O. OGOLA
JUDGE
PRESENT:
…………………………………………… For the Applicant
……………………………………………. For the Defendant
Irene – Court clerk