[2007] KEHC 1994 (KLR)
The court held that the application to amend the plaint for the purpose of adding a second plaintiff was misconceived and incompetent. The proper procedure for adding a party to a suit is by making an application under Order I, rule 10 of the Civil Procedure Rules, not by amendment of pleadings per se. Since the...
Source-derived case information.
- Citation
- [2007] KEHC 1994 (KLR)
- Parties
- Plaintiff: Margaret Soares; Defendant: Jane Otieno
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 660 of 2005
- Procedural Posture
- Civil Case / Ruling on Application to Amend Plaint
- Outcome
- application struck out with costs to the defendant
- Legal Topics
- Amendment of Pleadings, Joinder of Parties, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Soares
Plaintiff
Jane Otieno
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether amendment of pleadings is the proper procedure to add a new plaintiff to the suit.
- 2 Whether the application to amend the plaint is competent under the Civil Procedure Rules.
Ratio Decidendi
The court held that the application to amend the plaint for the purpose of adding a second plaintiff was misconceived and incompetent. The proper procedure for adding a party to a suit is by making an application under Order I, rule 10 of the Civil Procedure Rules, not by amendment of pleadings per se. Since the plaintiff failed to follow the correct procedure, the application was struck out as incompetent.
Court Disposition
application struck out with costs to the defendant
Orders
- The chamber summons dated 18th April, 2006 is struck out with costs to the defendant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(MILIMANI COMMERCIAL COURTS COMMERCIAL AND TAX DIVISION)
CIVIL CASE 660 OF 2005
MARGARET SOARES …….……………………………...PLAINTIFF
V E R S U S
JANE OTIENO ……………………..……………..………..DEFENDANT
R U L I N G
There has been considerable delay in the preparation and delivery of this ruling. The same was occasioned by my serious illness in 2006 and the long attendant recuperation. The delay is regretted.
This is an application by the Plaintiff for leave to amend the plaint. It is by chamber summons dated 18th April, 2005 under Order 6A, rules 3, 5 and 8 of the Civil Procedure Rules (the Rules). It is stated that the purpose of the amendment is to add a second plaintiff, and that the additional plaintiff is a necessary party. It is further stated that the amendment sought will assist in determination of the real issues in controversy, and that no prejudice will be occasioned to the Defendant. There is a supporting affidavit sworn by the 2nd Plaintiff. A draft amended plaint is annexed thereto.
The Defendant has opposed the application as set out in the grounds of opposition dated 17th May, 2006. process of the law.
There is no replying affidavit filed.
I have duly considered the submissions of the learned counsels appearing, including the cases cited. I must state emphatically at the outset that amendment of pleadings per se is not a proper way of adding a party to a suit. A proper application in that regard must be made under Order I, rule 10 of the Rules. Where a party is properly added under that rule, amendment of the plaint may be necessary, and the court may order that the plaint and other pleadings be appropriately amended. Where the party added is a defendant, then, as decreed by subrule (4) of rule 10 aforesaid, the plaint must be amended.
Inasmuch as the purpose of the amendment sought is to add another plaintiff in the suit, the application is clearly misconceived. It is incompetent and must be struck out. Let an appropriate application under rule 10 of Order I of the Rules be made.
In the event the application by chamber summons dated 18th April, 2006 is hereby struck out with costs to the Defendant. There will be an order accordingly.
DATED AT NAIROBI THIS 11TH DAY OF SEPTEMBER, 2007
H. P. G. WAWERU
J U D G E
DELIVERED THIS 14TH DAY OF SEPTEMBER, 2007