[2003] KEHC 682 (KLR)
The court found that the application to amend the plaint was merited because the original plaint indicated that there were 77 plaintiffs, and the amendment merely sought to include the names of all plaintiffs. The court was satisfied that authority from all 76 other plaintiffs had been provided to the advocate. The...
Source-derived case information.
- Citation
- [2003] KEHC 682 (KLR)
- Parties
- Plaintiff: Newton Liyayi & 76 Others; Defendant: Birch Investments EPZ Ltd.
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 262 of 2002
- Procedural Posture
- Civil Case / Ruling on Application to Amend Plaint
- Outcome
- Application to amend plaint allowed in part.
- Legal Topics
- Amendment of Pleadings, Joinder of Parties, Representative Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Newton Liyayi & 76 Others
Plaintiff
Birch Investments EPZ Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiffs should be granted leave to amend the plaint to include the names of all 77 plaintiffs.
- 2 Whether the amendment would cause prejudice to the defendant.
- 3 Whether the first plaintiff required leave of court to represent the other 76 plaintiffs.
Ratio Decidendi
The court found that the application to amend the plaint was merited because the original plaint indicated that there were 77 plaintiffs, and the amendment merely sought to include the names of all plaintiffs. The court was satisfied that authority from all 76 other plaintiffs had been provided to the advocate. The objection that the first plaintiff needed leave to represent the others was dismissed, as this was not a representative suit but a suit by multiple plaintiffs with proper authority. The court held that no prejudice would be caused to the defendant by the amendment, as the defendant was already aware of the number of plaintiffs. The application was allowed in terms of granting...
Court Disposition
Application to amend plaint allowed in part.
Orders
- Leave granted to amend the plaint as per the draft annexed.
- The amended plaint to be filed and served within ten days of the date of the ruling.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO.262 OF 2002
NEWTON LIYAYI & 76 OTHERS ……………………… PLAINTIFFS
VERSUS
BIRCH INVESTMENTS EPZ LTD. ……………..…….. DEFENDANTS
RULING
This application is seeking two orders i.e. an order that the Plaintiff be granted leave to amend the plaint as per annexed draft amended plaint and that the same draft amended plaint be deemed as duly filed and served upon payment of requite fees. It is also seeking costs to be in the cause. It is brought on grounds that the amendment is necessary to include and reflect the names of all the 77 Plaintiffs; that the amendment will enable the court to determine all matters in question between all parties interested in the subject suit and that the proposed amendment will not cause prejudice to the Defendant. There is also an affidavit in support of the application.
The Respondent opposed the application and filed Grounds of opposition but did not attend court to urge the same grounds. However the grounds of opposition are on record and I cannot ignore them. The grounds are that the plaint is incurably incompetent and no amount of amendment can cure the defect. The first Plaintiff herein did not have leave to represent the other 76 person; that the amendment seeks to join the other 76 persons to the suit irregularly by implication without their seeking to be so joined; that the Plaintiff herein still does not have leave of court to prosecute this application for unjoined others and the amendment is therefore an abuse of the court process.
The original plaint which is sought to be amended did mention that the Plaintiff was suing together with 76 others. Only the names of the same 76 were not mentioned in that plaint. Indeed a list has been provided showing that the same 76 plaintiffs gave authority and instructions to the counsel to proceed and take action on their instructions. I do not see any merit in the objection that the plaintiff Newton Liyayi needed leave of the court to commence the proceedings on behalf of the 76 others as this is not a representative to suit.
I do feel that this application is merited. I do not see any prejudice that the Defendant would suffer as the original plaint had made it aware that the Plaintiffs were 77 and not one. I do allow the application in terms of prayer 1. However as to prayer 2, I do feel and I order that the amended plaint be filed and served within ten days of the date hereof. The Defendant is at liberty to file amended Defence within 10 days of the service of the amended plaint upon it. As the Defendant did not attend court on the hearing day, I will make no order as to costs for it. I will also not order costs in the cause. There shall be no order as to costs. Orders accordingly.
Dated and delivered this 26th Day of February 2003.
J.W. ONYANGO OTIENO
JUDGE