[2001] KEHC 589 (KLR)
The court found that the plaintiff's application to amend the plaint was fundamentally flawed because it was brought under the wrong legal provisions. While the plaintiff relied on Section 100 of the Civil Procedure Act and Order VIA Rules 3 and 8 of the Civil Procedure Rules, the court held that the correct...
Source-derived case information.
- Citation
- [2001] KEHC 589 (KLR)
- Parties
- Plaintiff: Mwihangiri Farmers Ltd.; Defendant: Ecumemical Development Co-operative Society (E.D.C.S.) U A
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2026 of ??
- Procedural Posture
- Civil Case / Ruling on Application to Amend Plaint
- Outcome
- application struck out as incompetent
- Judges
- T Mbaluto
- Legal Topics
- Amendment of Pleadings, Addition of Parties, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwihangiri Farmers Ltd.
Plaintiff
Ecumemical Development Co-operative Society (E.D.C.S.) U A
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the application to amend the plaint to add new plaintiffs was brought under the correct legal provisions.
- 2 Whether the court should grant leave to amend the plaint as sought.
Ratio Decidendi
The court found that the plaintiff's application to amend the plaint was fundamentally flawed because it was brought under the wrong legal provisions. While the plaintiff relied on Section 100 of the Civil Procedure Act and Order VIA Rules 3 and 8 of the Civil Procedure Rules, the court held that the correct provision for adding new parties is Order 1 Rule 10 of the Civil Procedure Rules. Since the application did not invoke the proper rule, it was incompetent. The court therefore struck out the application with costs, emphasizing the necessity of adhering to the correct procedural framework when seeking to amend pleadings to add parties.
Court Disposition
application struck out as incompetent
Orders
- The application to amend the plaint is struck out with costs.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO. 2026 OF 2000
MWIHANGIRI FARMERS LTD. ………………………. PLAINTIFF VERSUS ECUMEMICAL DEVELOPMENT CO-OPERATIVE SOCIETY (E.D.C.S.) U A ……….. DEFENDANT
RULING
The plaintiff in this matter, Mwihangiri Farmers Limited has brought this application under S. 100 of the Civil Procedure Act and Order VIA Rules 3 and 8 of the Civil Procedure Rules for leave of this court to amend the plaint in the manner indicated in the draft amended plaint annexed to the application.
A perusal of the draft amended plaint shows that the effect of the amendment, apart from introducing a few minor amendments which in any case could have been effected through an oral application will be to add 24 new plaintiffs to the suit. As the heading of this chamber summons application shows that the application is made under Section 100 of the Civil Procedure Act and Order VIA Rules 3 and 8 of the Civil Procedure Rules.
Mr. Mwangi Gathuri for the defendant/respondent opposed the application on the ground that the provisions of the law under which the application has been made are not relevant in an application of this nature. I agree with that submission. In my view what the plaintiff is seeking to do is simply to add new parties to the suit. The provision of the Civil Procedure Rules which deals with that type of applications i.e. the substitution and addition of parties is Order 1 Rule 10 and not Order VIA Rules 3 and 8 of the Civil Procedure Rules. It is therefore clear that this application has been brought under the wrong provision of the law. It is for that reason incompetent and is accordingly struck out with costs.
Dated at Nairobi this 29th day of May, 2001.
T. MBALUTO JUDGE