[2015] KEHC 1237 (KLR)
The court found that the application for extension of time to amend the originating summons was not opposed. The applicants had only recently become aware of the lapse in leave to amend after a change of advocates and substitution as legal representatives for the deceased plaintiff. Given the absence of opposition,...
Source-derived case information.
- Citation
- [2015] KEHC 1237 (KLR)
- Parties
- Plaintiff: M’Anampiu M’Mukindia; Defendant: Francis M’Ringera M’Rimberia; Defendant: Stanley Mwenda; Applicant: John Marete Anampiu; Applicant: Stanley Karemu Anampiu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 68 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Amend Originating Summons
- Outcome
- application allowed
- Legal Topics
- Amendment of Pleadings, Extension of Time, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’Anampiu M’Mukindia
Plaintiff
Francis M’Ringera M’Rimberia
Defendant
Stanley Mwenda
Defendant
John Marete Anampiu
Applicant
Stanley Karemu Anampiu
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Amend Originating Summons
Legal Issues
- 1 Whether the court should grant an extension of time to amend the originating summons after the lapse of previously granted leave.
- 2 Whether the substitution of parties due to death of the original plaintiff and defendant justifies the extension sought.
Ratio Decidendi
The court found that the application for extension of time to amend the originating summons was not opposed. The applicants had only recently become aware of the lapse in leave to amend after a change of advocates and substitution as legal representatives for the deceased plaintiff. Given the absence of opposition, the court exercised its discretion in favour of the applicants, holding that the interests of justice required granting the extension. The court emphasized that it has absolute discretion to allow such amendments and that the application was made in good faith. Accordingly, the application was allowed and costs were ordered to be in the cause.
Court Disposition
application allowed
Orders
- The application for extension of time to amend the originating summons is allowed.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
HCC 68 OF 2002
M’ANAMPIU M’MUKINDIA ................................................................PLAINTIFF
VERSUS
FRANCIS M’RINGERA M’RIMBERIA...................1ST DEFENDANT/RESPONDENT
STANLEY MWENDA ...............................................2ND DEFENDANT/RESPONDENT
AND
JOHN MARETE ANAMPIU & STANLEY
KAREMU ANAMPIU …................................LEGAL REPRESENTATIVES/APPLICANTS
R U L I N G
This application has been brought pursuant to Section 1A,1B,3A,63 (c ) and (e), 95 and 100 of the Civil Procedure Act, Order 8 Rule 3 and 5 and Order 50 Rule 6 of the Civil Procedure Rules and Articles 10, 25(c ), 50 (1) and 159 of the Constitution of Kenya. The application seeks orders:-
THATthe application be certified extremely urgent and it be heard on priority basis .
THATthe Plaintiff/ Applicant be granted extension/ enlargement of time within which to amend the Originating Summons on record.
THATcosts of the application be in the cause.
The application is supported by the affidavit of STANLEY KAREMU ANAMPIU and has the following grounds:-
THATleave granted to amend the originating summons, vide a Ruling delivered herein on 29. 09. 2011, has since lapsed.
THATthe new Plaintiffs/Applicants became aware of the above requirement on 11. 08. 2015 through their present counsel who perused the Court file upon filing a notice of change of advocates and realized the same.
THATthe original Plaintiff and the 1st Defendant are deceased.
THATthe new Plaintiffs/Applicants were allowed to substitute the deceased Plaintiff.
THATfrom 29. 09. 2011, the matter has been in Court on several occasions.
THATthe application is made in utmost good faith, and in the interest of justice, since the Court has absolute discretion to grant the relief sought.
During Interpartes hearing on 7/10/2015, the Advocate for the respondents did not attend Court. The Respondents were also not in Court.
Mr. Rimita who was holding brief for Advocate Carlpeters Mbaabu, for the Applicant, told the Court that the application was not opposed and urged the Court to allow the application.
I find that the application is not opposed. In the Circumstances, the application is allowed. Costs shall be in the cause.
It is so ordered.
Delivered in open Court this 8th day of October, 2015 in the presence of:-
CC: Lilian /Daniel
Ondari h/b Carlpeters Mbaabu for Applicant.
Muthomi present for Respondents.
P.M.NJOROGE
JUDGE