[2013] KEHC 3777 (KLR)
The court found that the application for leave to amend the plaint was unopposed, as the defendant did not raise any substantive objection and no grounds of objection were on file. The court held that in the absence of opposition and given the plaintiff's explanation that new facts had come to light, it was...
Source-derived case information.
- Citation
- [2013] KEHC 3777 (KLR)
- Parties
- Plaintiff: Mohamed Shafiq Rafiq; Defendant: Ayhub Khan Karim
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 19 of 2012
- Procedural Posture
- Civil Suit / Ruling on Application to Amend Plaint
- Outcome
- Application for leave to amend plaint allowed.
- Judges
- SN Mukunya
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Draft Amended Plaint, Unopposed Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Shafiq Rafiq
Plaintiff
Ayhub Khan Karim
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend his plaint as per the draft annexed.
- 2 Whether there is any valid objection to the application for amendment.
Ratio Decidendi
The court found that the application for leave to amend the plaint was unopposed, as the defendant did not raise any substantive objection and no grounds of objection were on file. The court held that in the absence of opposition and given the plaintiff's explanation that new facts had come to light, it was appropriate to allow the amendment to ensure that all relevant matters are before the court. The draft amended plaint annexed to the application was deemed as filed, and there was no order as to costs. The court distinguished the defendant's separate application to strike out the suit as unrelated to the present application for amendment.
Court Disposition
Application for leave to amend plaint allowed.
Orders
- The plaintiff is granted leave to amend his plaint as per the draft annexed.
- The draft amended plaint is deemed as filed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
Civil Suit 19 of 2012 [if gte mso 9]><![endif]
MOHAMED SHAFIQ RAFIQ ….................................................................. PLAINTIFF
-V E R S U S -
AYHUB KHAN KARIM …........................................................................... DEFENDANT
RULING
The plaintiff filed the application dated 8th of December 2012 praying for orders that he be granted leave to amend his plaint as filed herein in terms of the Amended Draft Plaint annexed to the application.
When the application came for hearing before me on the 16th April 2013 the applicant relied on his supporting affidavit sworn on 8th November 2012. He avered that there were circumstances which he had come to know and that those circumstances were not well within his knowledge when he filed the application. He avered that the Court ought to be brought to the knowledge of those facts.
He also annexed a draft amended plaint therein which he wanted to be deemed as filed. The application was served on H.A.T Anjarwalla on 22nd December 2012. Learned Counsel Mr. Anjarwalla appeared for the respondent. He stated that he had filed his grounds of objection to the application. He did not have serious objections to the application.
There are no grounds of objection on the file. The Respondents instead have filedan application dated 15/4/2008 to strike out this suit.
There is no return of service on the application dated 15/4/2013. This is a completely different application to the application of 8/11/2012.
The application of 8/11/2012 is not opposed.The same is allowed as prayed. The draft amended defence annexed to that application is deemed as filed. There shall be no order as to costs.
DATED and delivered at Mombasa this 30th day of April, 2013
S.N. MUKUNYA
JUDGE
In the presence of:
Plaintiff in person
Anjarwalla for defendant
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