[2020] KEHC 559 (KLR)
The court found that the error in the supporting affidavit was an inadvertent mistake and that the applicant promptly sought leave to amend upon realizing the defect. The court exercised its discretion under Order 8 Rule 3 of the Civil Procedure Rules 2010, guided by the principle that amendments should be allowed...
Source-derived case information.
- Citation
- [2020] KEHC 559 (KLR)
- Parties
- Plaintiff: Lyna G. Ventures Ltd; Defendant: Northern Construction Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 143 of 2019
- Procedural Posture
- Notice of Motion / Ruling on Application to Amend Supporting Affidavit
- Outcome
- application to amend supporting affidavit granted
- Judges
- MW Muigai
- Legal Topics
- Amendment of Pleadings, Supporting Affidavit Defects, Court Discretion, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lyna G. Ventures Ltd
Plaintiff
Northern Construction Ltd
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Amend Supporting Affidavit
Legal Issues
- 1 Whether the court should grant leave to amend a defective supporting affidavit to the notice of motion.
- 2 Whether the defect in the supporting affidavit renders the application fatally defective and liable to dismissal.
- 3 Whether the amendment of the affidavit can cure the procedural irregularity.
Ratio Decidendi
The court found that the error in the supporting affidavit was an inadvertent mistake and that the applicant promptly sought leave to amend upon realizing the defect. The court exercised its discretion under Order 8 Rule 3 of the Civil Procedure Rules 2010, guided by the principle that amendments should be allowed to facilitate the determination of the real issues in controversy. The court also considered Article 159(2)(d) of the Constitution, which mandates that justice be administered without undue regard to procedural technicalities. The court held that the amendment would not occasion prejudice to the respondent, who would have a corresponding opportunity to respond. Accordingly,...
Court Disposition
application to amend supporting affidavit granted
Orders
- Leave is granted to the applicant to amend the supporting affidavit to the application of 27th November 2020.
- The amended supporting affidavit shall be served within 21 days from the date of this ruling.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
COMMERCIAL & TAX DIVISION
AT NAIROBI
HIGH COURT 143 OF 2019
LYNA G. VENTURES LTD..................................................................PLAINTIFF/RESPONDENT
VERSUS
NORTHERN CONSTRUCTION LTD................................................DEFENDANT/APPLICANT
RULING (3)
The Defendant/Applicant filed Notice of Motion on 27th November 2020 and the Plaintiff/Applicant filed Replying Affidavit on 30th November 2020. Written Submissions were filed and exchanged by parties through respective Counsel. The Applicant begun oral highlights today, midstream Counsel made reference to pleadings filed and to be relied on. The Supporting Affidavit to the application is indicated that it is by Mohammed Nur but details of 15 paragraphs are sworn by Abdi Mohammed before Commissioner of Oaths George Wandati Advocate on 27th November 2020.
The Respondent’s advocate objected to the application as incompetent as the Supporting Affidavit was contrary to Section 4, 5 & 11 of Oaths & Statutory Act. The said Mohammed Nur and Abdi Mohammed seemed to be one and the same person as deponed in the Supporting Affidavit.
Applicant’s Counsel informed this Court that it was an inadvertent honest mistake and realized the same while on his feet submitting on the instant application. Counsel sought leave to amend the Supporting Affidavit and that it would not occasion any prejudice.
The Respondent’s advocate opposed an amendment to the Supporting Affidavit as the deponent of the Affidavit is the one to amend the affidavit and not Counsel. Secondly, that the amendment would not cure the legal challenge. The Notice of Motion was/is fatally defective as it lacks a Supporting Affidavit and it ought to be dismissed. The Supporting Affidavit as sworn in the jurat has false content by claiming Mohammed Nur and Abdi Mohammed are one and the same person which is false.
The Applicant’s Counsel reiterated submissions earlier made and added reliance on Article 159 2 (d) COK 2010 and sought leave to amend the Supporting Affidavit.
DETERMINATION
Order 8 Rule 3 CPR 2010; Amendment of pleading with leave provides;
(1) Subject to Order 1, Rules 9 and 10, Order 24, Rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.
(2) Where an application to the court for leave to make an amendment such as is mentioned in sub rule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such sub rule if it thinks just so to do.
In the case ofDaniel Ouma Okuku Vs Kenya Plantation & Agricultural Workers Union Civil Appeal 85 Of 2017;The Court of Appeal stated;
“Parties can amend their pleadings with leave of the Court at any time before judgment…in the case of SULEIMAN vs KARASHA [1989] eKLR it did not matter whether the hearing had been concluded- the court had to consider such an application for leave to amend a pleading and give effect to such an application as it deemed fit. The Court has wide discretion to amend pleadings at any stage of the proceedings so as to bring out real issues in controversy between parties and on such terms as to costs as may be just.”
DISPOSITION
1. The application to amend the Supporting Affidavit to the application of 27th November 2020 by the Applicant with leave of the court is granted.
2. The Supporting Affidavit shall be amended and served within 21 days from today (as the Court shall close end of week for Christmas and end of year 2020 holidays)
3. The Respondent shall have corresponding leave to file Amended Replying Affidavit and serve within 21 days from service of amended Supporting Affidavit.
4. Once pleadings close parties/Counsel shall proceed to highlight written submissions filed with regard to the application of 27th November 2020 on 8th February 2021.
DELIVERED SIGNED & DATED IN OPEN COURT ON 15th DECEMBER 2020 (VIDEO CONFERENCE).
M.W. MUIGAI
JUDGE
IN THE PRESENCE OF;
MR. ONDIEKI FOR THE RESPONDENT
MR. LINTURI FOR THE APPLICANT
COURT ASSISTANT - TUPET