[2005] KEHC 2803 (KLR)
The court found that the application to amend the originating summons was merited as the defect was procedural and could be rectified by amendment. The court observed that no prejudice would be suffered by the respondent if the amendment was allowed. The court emphasized that allowing the amendment would enable it...
Source-derived case information.
- Citation
- [2005] KEHC 2803 (KLR)
- Parties
- Applicant: Peter Mbogo Gitahi; Respondent: Muchemi Thiongo
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 80 of 2003
- Procedural Posture
- Civil Case / Ruling on Application to Amend Originating Summons
- Outcome
- Application allowed. Leave granted to amend originating summons within 15 days. Costs to respondent.
- Legal Topics
- Amendment of Pleadings, Originating Summons, Procedural Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mbogo Gitahi
Applicant
Muchemi Thiongo
Respondent
Procedural Posture
Civil Case / Ruling on Application to Amend Originating Summons
Legal Issues
- 1 Whether the applicant should be granted leave to amend the originating summons to correct a procedural defect.
- 2 Whether the respondent would suffer prejudice if the amendment is allowed.
Ratio Decidendi
The court found that the application to amend the originating summons was merited as the defect was procedural and could be rectified by amendment. The court observed that no prejudice would be suffered by the respondent if the amendment was allowed. The court emphasized that allowing the amendment would enable it to address the substantive merits of the case rather than being hindered by technicalities. Accordingly, the court exercised its discretion under Order VI A of the Civil Procedure Rules to grant leave to amend the originating summons, subject to the applicant paying the costs of the application to the respondent.
Court Disposition
Application allowed. Leave granted to amend originating summons within 15 days. Costs to respondent.
Orders
- The applicant is granted leave to amend the originating summons within 15 days from the date of the ruling.
- The applicant shall pay the costs of the application to the respondent.
Full Case Text
Judgment text and source record
7 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI HIGH COURT CIVIL CASE NO. 80 OF 2003
MUCHEMI THIONG’O ………………………………………………….. PLAINTIFF VERSUS PETER MBOGO GIATHI ……………………………………………. DEFENDANT
R U L I N G Peter Mbogo Gitahi, the applicant seeks to have his originating summons dated 2nd September 2003 amended as the same is erroneously described as a Chamber Summons. Muchemi Thiongo the Respondent objects to the application. There is no doubt that the application dated 2nd September 2003 as drafted is defective. Indeed the court had occasion to make that observation in its ruling of 26th May 2005. The applicant now seeks to amend the originating summons so as to rectify the defect.Under order VI A rule 3 as read with rule 4, of the Civil Procedure Rules pleadings which includes an originating summons can be amended at any stage with leave of the court. In the circumstances of this case it is apparent that no prejudice will be suffered by the Respondent if the court grants leave to have the originating summons amended. Indeed it will enable the court to deal with the merits of the summons without being bogged down with technicalities.
I do therefore allow this application and order that the applicant shall have leave to amend the originating summons within 15 days from the date hereof. The applicant shall pay costs of the application to the Respondent.
Dated this 10th day of May 2005
H. M. OKWENGU JUDGE