[2019] KECPT 55 (KLR)
The tribunal found that the intended amendments introduced issues that may be relevant to the statement of claim, particularly as the claim sought not only a refund but also compensation and damages. The tribunal held that the amendments raised triable issues that could be canvassed during the hearing and that the...
Source-derived case information.
- Citation
- [2019] KECPT 55 (KLR)
- Parties
- Claimant: Margaret Wairimu Gacheru; Respondent: Boots Sacco Ltd
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 4 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Amend Defence
- Outcome
- application allowed
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Statement of Defence, Costs, Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Wairimu Gacheru
Claimant
Boots Sacco Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Amend Defence
Legal Issues
- 1 Whether the respondent/applicant should be granted leave to amend the statement of defence.
- 2 Whether the intended amendments introduce new material facts or law.
- 3 Whether the amendment would prejudice the claimant.
Ratio Decidendi
The tribunal found that the intended amendments introduced issues that may be relevant to the statement of claim, particularly as the claim sought not only a refund but also compensation and damages. The tribunal held that the amendments raised triable issues that could be canvassed during the hearing and that the claimant would not be prejudiced, as she was granted leave to reply. The application for leave to amend the statement of defence was therefore allowed, subject to payment of filing fees, and the amended defence was deemed duly filed and served. Costs were ordered to be in the cause.
Court Disposition
application allowed
Orders
- The applicant is granted leave to amend the statement of defence and the intended amended statement of defence filed on 8/8/2019 is deemed duly filed and served subject to payment of filing fees.
- The claimant is granted leave to file and serve a reply to the amended statement of defence within 14 days.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO. 4 of 2019
MARGARET WAIRIMU GACHERU..............................................................CLAIMANT
VERSUS
BOOTS SACCO LTD.....................................................................................RESPONDENT
RULING
The matter for determination is a Notice of Motion application dated 7/8/2019 seeking for leave to amend the statement of defence and costs be provided for. The same is opposed by the replying affidavit filed on 19/8/2019. The applicant with the leave of the tribunal filed a supplementary affidavit on 30/8/2019 and the respondent filed a further affidavit on 5/9/2019. Parties filed their written submission to dispense the said application. The Applicant submitted that there was need to amend the defence premised by the fact that the claimant was a member of the Applicant Supervisory Committee when there was misappropriation of the applicants member funds and she failed in her duty of care. Hence the need to amend the defence and prays for the amendment of the application be allowed.
The claimant submitted that the Respondent/ Applicant has not denied owing the claimant hence the application to amend the defence is only meant to harass, embarrass and settle scores.
That the said intended amendment does not introduce any matters, both facts or law different from that in the pleadings and subsequent averments in the affidavit filed.
That there is no annexures between the claimant’s claim and any other actions the respondent wishes to introduce. That the said intended amendment does not add any new material and it is a waste of time.
We have considered the submissions of the parties and noted the intended amendments by the applicants. We note the intended amendments have introduced issues which may be relevant to the statement of claim and which may be canvassed during the hearing of the matter owing to the fact the statement of claim does not only seek a refund of the share but also seeks the following prayers:-
(a) Paragraph 9(b) compensation in the nature of punitive and general damages.
(b) Paragraph 9(c) compensation for loss of benefits of the refunds since June, 2014.
The issues raised in the intended amendments may come up during the hearing of the statement of claim and also raises triable issues interms of the defence.
We therefore allow the application dated 7/8/2019 and order as follows;-
(1) The applicant is hereby granted leave to amend the statement of defence and the intended amended statement of defence filed on 8/8/2019 be deemed as duly filed and served subject to payment of filing fees.
(2) The claimant is granted corresponding leave to file and serve the reply to the amended statement of defence within 14 days herein.
(3) Costs in the cause.
Read and delivered in open court, this 7th of November 2019
In the presence of:
Claimant:Karanja advocate for the claimant.
Respondent:Mbuthia for Respondent/Applicant.
Court Assistant:Leweri and Buluma.
B.Kimemia - Chairman-signed.
R.Mwambura – Member-signed.
P.Swanya - Member-signed.