[2016] KEHC 3984 (KLR)
The court held that in the interests of justice, the defendant should be allowed to file his amended defence and counterclaim so that the real issues between the parties can be determined. The court found that any legal objections, including limitation and procedural issues, could be addressed at the hearing of the...
Source-derived case information.
- Citation
- [2016] KEHC 3984 (KLR)
- Parties
- Plaintiff: Naomi O. Okibo; Defendant: Francis W. Almasi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 229 of 2014
- Procedural Posture
- Land Case / Ruling on Application to Amend Defence
- Outcome
- application allowed
- Legal Topics
- Amendment of Pleadings, Limitation of Actions, Counterclaim, Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Naomi O. Okibo
Plaintiff
Francis W. Almasi
Defendant
Procedural Posture
Land Case / Ruling on Application to Amend Defence
Legal Issues
- 1 Whether the defendant should be granted leave to amend his defence to include a counterclaim.
- 2 Whether the proposed amendment is barred by limitation under Section 7 of the Limitation of Actions Act.
- 3 Whether the amendment offends the Civil Procedure Rules and constitutes an abuse of court process.
Ratio Decidendi
The court held that in the interests of justice, the defendant should be allowed to file his amended defence and counterclaim so that the real issues between the parties can be determined. The court found that any legal objections, including limitation and procedural issues, could be addressed at the hearing of the suit. The application to amend the defence was therefore allowed, with the plaintiff being granted leave to file a reply to the counterclaim within fourteen days. Costs were ordered to be in the cause.
Court Disposition
application allowed
Orders
- The defendant is granted leave to file the amended defence and counterclaim as prayed.
- The plaintiff is granted leave to file a reply to the counterclaim within fourteen days.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
LAND AND ENVIRONMENT CASE NO. 229 OF 2014
NAOMI O. OKIBO ………………………………………………PLAINTIFF
VERSUS
FRANCIS W. ALMASI ……………………………………….DEFENDANT
RULING
[1] The Notice of Motion before the court is brought under Rule 3, 5 and 8 of the Civil Procedure Rules 2010. The applicant prays for leave to amend the defence. He has annexed a copy of the amended defence and prays that the same be deemed as filed. He supports it with his application dated 22nd August 2015 in which he states that the amendment will bring out the actual issues.
[2] The application is opposed by the respondent who filed his statement of Grounds of Opposition under Order 51 Rule 14 (1) (c) of the Civil Procedure Rules 2010. The respondent argues that the application is filed contrary to the provisions of Section 7 of the Limitation of Actions Act Cap 22 Laws of Kenya since the alleged agreement for sale was executed on 16/4/1997 and that the said amendment offend Order 8 Rule 7 and Order 57 Rule 13(2) of the Civil Procedure Act 2010 and that the same is an abuse of the process of the court.
[3] I have carefully considered the application of the applicant and the reply of the respondent. The suit before me is for an injunction against the defendant. The defendant now wants to amend his defence and include a counterclaim praying that the suit land be transferred to him. I feel that in the interests of justice, the defendant should be allowed to file his amended defence. The plaintiff shall also be allowed to file a reply to the counterclaim if he so wishes within fourteen days.
This is necessary so that the real issue between the parties can be determined. All the legal issues as the limitation and other relevant legal issues can be dealt with at the hearing hereof.
The upshot of this ruling is that the application herein is allowed as prayed. Costs shall be in the cause.
Dated,signed and delivered at Bungoma this 27th day of July 2016
S.MUKUNYA - JUDGE
In the presence of
Gladys court assistant
Mr. were h/b for Situma for defendant applicant
Miss Bett for Mr. Onchiri for the respondent