[2008] KEHC 3425 (KLR)
The court found that the application to amend the statement of defence to include a counter-claim was unopposed and that the applicant had satisfied the legal requirements for amendment. The court exercised its discretion under section 100 of the Civil Procedure Act and Order 6A Rule 3 of the Civil Procedure Rules,...
Source-derived case information.
- Citation
- [2008] KEHC 3425 (KLR)
- Parties
- Plaintiff: Mwenendega Enterprises Ltd; Defendant: Kenya Commercial Bank Ltd
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 56 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Amend Defence to Include Counter Claim
- Outcome
- application to amend defence allowed
- Judges
- SP Ouko
- Legal Topics
- Amendment of Pleadings, Counter Claims, Court Discretion, Good Faith in Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwenendega Enterprises Ltd
Plaintiff
Kenya Commercial Bank Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Defence to Include Counter Claim
Legal Issues
- 1 Whether the defendant should be granted leave to amend its statement of defence to include a counter-claim.
- 2 Whether the amendment is in good faith, timely, and necessary for determination of the real issues in dispute.
Ratio Decidendi
The court found that the application to amend the statement of defence to include a counter-claim was unopposed and that the applicant had satisfied the legal requirements for amendment. The court exercised its discretion under section 100 of the Civil Procedure Act and Order 6A Rule 3 of the Civil Procedure Rules, noting that the amendment was necessary to determine all issues arising from the loan agreement in one proceeding, was made in good faith, and would not prejudice the respondent. Accordingly, the application was allowed and the amendments sought in the draft annexed to the application were granted.
Court Disposition
application to amend defence allowed
Orders
- The application to amend the statement of defence by including a counter-claim is allowed.
- The amendments sought in the draft annexed to the application are granted.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Civil Case 56 of 2002
MWENENDEGA ENTERPRISES LTD………..……………... PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK LTD ……………………… DEFENDANT
RULING
The application to which this ruling relates was filed on 6th November 2006. It came for hearing before me on 15th November 2007, when it transpired that the respondent was duly served with the application and the hearing date but failed to attend.
Hearing proceeded exparte. The application seeks to amend the statement of defence by including a counter-claim. As it is the application is unopposed but nonetheless the applicant was duty-bound to satisfy conditions for amendment of pleadings. The application is brought pursuant to Order 6A Rule 3 of the Civil Procedure Rules.
The substantive law, however, is section 100 of the Civil Procedure Act. Both the Act and the procedures cloth the court with a wide discretion to allow for amendment of the pleadings at any stage subject only to ensuring that any amendment to be made is for the purpose of determining the real question or issue raised by or depending on the proceeding. Amendment must also be made in good faith and timeously. See Joseph Ochieng and 2 others V. First National Bank of Chicago Civil Appeal No. 149 of 1991.
The applicant has deposed that in accordance with the terms of the guarantee the intended defendants in the counter-claim undertook to satisfy any outstanding sums in the loan account. By seeking to counter claim the outstanding sums from the two intended defendants in the guarantees the applicant’s intention is to ensure that all the issues arising from the loan agreement are determined together. There will be no prejudice to the respondent. The application is allowed. The amendments sought in the draft annexed to the application is granted.
I make no orders as to costs.
Dated and delivered at Meru this 12th .day of …May… 2008.
W. OUKO
JUDGE