[2009] KEHC 1263 (KLR)
The court found that the applicant failed to demonstrate why the proposed amendments were required or which part of the defence was in error. The draft attached did not indicate the specific further amendments sought, making it impossible for the court to determine their purpose or necessity. The court emphasized...
Source-derived case information.
- Citation
- [2009] KEHC 1263 (KLR)
- Parties
- Plaintiff: Matunda Estate Limited; Defendant: EVG-Three Constructions Systems Ltd.; Defendant: Development Bank (K) Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 195 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Amend Defence
- Outcome
- application dismissed with costs
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Res Judicata, Affidavit Competency
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Matunda Estate Limited
Plaintiff
EVG-Three Constructions Systems Ltd.
Defendant
Development Bank (K) Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Defence
Legal Issues
- 1 Whether the 1st defendant should be granted leave to amend its Amended Statement of Defence.
- 2 Whether the proposed amendments are necessary for determining the real question in controversy.
- 3 Whether the affidavit in support of the application is competent.
Ratio Decidendi
The court found that the applicant failed to demonstrate why the proposed amendments were required or which part of the defence was in error. The draft attached did not indicate the specific further amendments sought, making it impossible for the court to determine their purpose or necessity. The court emphasized that leave to amend is granted to allow scrutiny of the proposed changes to ensure justice for both parties. In the absence of clarity on the amendments, granting leave would be purposeless. Consequently, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for leave to amend the Amended Statement of Defence is dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI COMMERCIAL AND ADMIRALTY DIVISION
Civil Case 195 of 2008
MATUNDA ESTATE LIMITED ……………………...…… PLAINTIFF
VERSUS
EVG-THREE CONSTRUCTIONS
SYSTEMS LTD. ………………………………………. 1ST DEFENDANT
DEVELOPMENT BANK (K) LTD. ………………… 2ND DEFENDANT
R U L I N G
Application dated 31/3/09 seeking orders under Order VI A Rule 3, 5, 7 and 8 Civil Procedure Rules and Section 3 and 3A of Civil Procedure Code, Cap. 21. The 1st defendant seeks leave to amend its Amended Statement of Defence in terms of the defence attached on the ground that the amendments sought will assist the court in deterimining the real question in controversy. And failure to include the relevant amendments herein was an omission.
The application is opposed by the plaintiff on the ground that no basis has been disclosed for the grant of orders sought. And the affidavit is incompetent for being sworn by counsel the matters being in controversy. Furthermore, the proposed amendment is raising issues that are res judicata already decided by court in dated 3/2/2009. And that matter raised do not relate to any issue in controversy in this suit.
Power to court to allow amendments of pleadings is contained in Order VI A Rule 3 which provides:-
“The court may at any stage of proceedings …………. Allow any party to amend his pleadings.”
General power to amend is also granted to court to order any document to be amended for the purpose of determining the real question in controversy between parties or of correcting any defect or error in any proceedings.
The applicant has not shown why the proposed amendments are required or which part of the defence is in error. The proposed further amendments are not indicated in the draft attached. The purpose of leave is to give court opportunity to look at the proposed amendment to ensure justice is done on both sides.
In the circumstances, it is not possible to determine what amendments are intended and therefore the purpose of granting leave is purposeless. Application is dismissed with costs.
Orders accordingly.
DATED, SIGNED and DELIVERED at Nairobi this 4th day of November, 2009.
JOYCE N. KHAMINWA
JUDGE