[2014] KEHC 1875 (KLR)
The court found that, on a balance of probabilities, allowing the amendment was necessary to enable the court to determine the dispute between the parties. The court was satisfied that the defendant would not suffer prejudice that could not be compensated by costs or by the opportunity to respond to the amended...
Source-derived case information.
- Citation
- [2014] KEHC 1875 (KLR)
- Parties
- Plaintiff: Muna Hussein Adarus; Plaintiff: Shifaa Hussein Adarus; Defendant: Khalithum Adbullahi Omar
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 304 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Plaint
- Outcome
- application allowed
- Judges
- SN Mukunya
- Legal Topics
- Amendment of Pleadings, Exemplary Damages, Construction Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muna Hussein Adarus
Plaintiff
Shifaa Hussein Adarus
Plaintiff
Khalithum Adbullahi Omar
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiffs should be granted leave to amend the plaint to include a claim for exemplary damages.
- 2 Whether the amendment would prejudice the defendant or is time-barred.
Ratio Decidendi
The court found that, on a balance of probabilities, allowing the amendment was necessary to enable the court to determine the dispute between the parties. The court was satisfied that the defendant would not suffer prejudice that could not be compensated by costs or by the opportunity to respond to the amended plaint. The court exercised its discretion to allow the amendment, emphasizing the principle that amendments should generally be allowed to facilitate the just resolution of disputes, unless there is clear evidence of prejudice or abuse of process. The defendant was granted fourteen days to reply to the amended plaint, and costs of the application were ordered to be in the cause.
Court Disposition
application allowed
Orders
- Leave granted to the plaintiffs to amend the plaint as prayed.
- The amended plaint is deemed as filed.
Full Case Text
Judgment text and source record
20 paragraphs
COPY
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 304 OF OF 2010
1. MUNA HUSSEIN ADARUS
2. SHIFAA HUSSEIN ADARUS................................................................PLAINTIFF
- VERSUS -
KHALITHUM ADBULLAHI OMAR.........................................................DEFENDANT
RULING
{1] The applicant brings the notice of motion dated 17th April, 2014 for leave to amend the plaint. He based his prayers on the fact that since filing the suit, the defendant has proceeded and finished construction and that they need to amend the pleadings to plead exemplary damages. He annexed the intended amendment and argued that there will be no prejudice occasioned to the defendants and argued that amendment can be done at any time.
[2] The respondent opposed the application and argued that the application had been fixed for hearing on many occasions and could not be fixed for hearing since the plaintiff had not filed his supplementary list of documents. He argued that the plaintiffs were aware of the approvals to construct by the authorities way back in 2010. That the interim orders had lapsed and that if there was evidence of construction the applicants would have brought contempt proceedings. They argued that the exemplary damages sought were time barred. Further that this was a delay of tactic.
[3] Having heard the parties, I am convinced on balance of probabilities that an amendment will be necessary to enable the court to determine the dispute between the parties. The defendant shall have the right to reply on those amendments within fourteen days.
The plaintiffs having filed the amended plaint, the same shall be deemed as filed. The defendant is given fourteen days to reply to the same. The costs of this application shall be in the suit.
Dated and delivered in open court at Mombasa this 30th day of October 2014.
S. MUKUNYA
JUDGE
30. 10. 2014
In the presence of:
Mrs Njoroge advocate for Kiarie Kariuki advocate for the plaintiff
Mr Khatib advocate for the interested party