[2009] KEHC 3272 (KLR)
The court found that although the applicant had previously failed to amend the plaint despite being granted leave, the proposed amendments would clarify the issues in dispute and facilitate a fair determination of the suit. The court held that the defendant would not suffer any prejudice as it would have the...
Source-derived case information.
- Citation
- [2009] KEHC 3272 (KLR)
- Parties
- Applicant: Njiru Building Contractors; Respondent: Co-operative Bank of Kenya
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 69 of 2002
- Procedural Posture
- Civil Case / Ruling on Application for Leave to Amend Plaint
- Outcome
- application allowed
- Judges
- J Karanja
- Legal Topics
- Amendment of Pleadings, Joinder of Parties, Exercise of Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njiru Building Contractors
Applicant
Co-operative Bank of Kenya
Respondent
Procedural Posture
Civil Case / Ruling on Application for Leave to Amend Plaint
Legal Issues
- 1 Whether leave should be granted to amend the plaint to enjoin a second plaintiff and clarify issues in dispute.
- 2 Whether the defendant will suffer prejudice if the amendments are allowed.
Ratio Decidendi
The court found that although the applicant had previously failed to amend the plaint despite being granted leave, the proposed amendments would clarify the issues in dispute and facilitate a fair determination of the suit. The court held that the defendant would not suffer any prejudice as it would have the opportunity to respond to the amended plaint and any inconvenience could be addressed by an award of costs. The court exercised its discretion to allow the amendments, emphasizing that amendments should be permitted when they are made in good faith and serve to clarify rather than obscure the issues.
Court Disposition
application allowed
Orders
- The draft amended plaint is deemed as duly filed upon payment of requisite court fees.
- The amended plaint shall be served on the defendants within 7 days of the date of the ruling.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 69 of 2002
NJIRU BUILDING CONTRACTORS…………………..APPLICANT
VERSUS
CO-OPERATIVE BANK OF KENYA………….……RESPONDENT
RULING
The application dated 10/9/2008 by counsel for the plaintiff is seeking leave to amend the plaint in terms of the draft amended plaint. Among the amendments sought is the enjoining of the 2nd plaintiff. According to the applicant, the amendments are necessary for the just and fair determination of the suit and further, that the defendant will not suffer any prejudice as it will have an opportunity to file an amended defence if need be. In his affidavit in support of the application dated 10/9/2008, the intended 2nd plaintiff states that the court had on 9/11/2004 ordered that he be co-joined as a plaintiff but that was not done. He avers that as a guarantor of the disputed loan, he should be brought on board. He contends that the prayers as drafted in the original plaint are not sufficient to deal with the matters raised.
The application is nonetheless opposed vide the replying affidavit of Winfred Mwangi. She has averred that the applicant herein has been granted leave to amend the plaint by the court twice before but he has failed to do so. She says that the amendments do not raise anything new and sees the application as a ploy to further delay the matter. I have considered all these averments. I have perused the intended amended plaint and compared it with the original plaint. No convincing reasons have been given as to why the said amendments were not done earlier. The reason that the plaintiff has changed advocates is not sufficient. I nonetheless note that the draft amended plaint does actually bring out the issues raised more clearly and it will be much easier for the same to be ventilated and even defended by the defendants. The defendant do not stand to suffer any prejudice if the said amendments are allowed. The defendant can be compensated by way of costs. Leave to amend pleadings is at the discretion of the court. Where the court is satisfied that the amendments in question are made in good faith and where the same are meant to clear rather than obscure or cloud issues, then the same should be allowed. In this case, I admit that the amendments should have been done much earlier and there is no reason advanced as to why counsel previously on record failed to effect the said amendments. My finding however is that the defendant will not be prejudiced by the said amendments. It has the opportunity to respond to the amended plaint and any inconvenience can be usuaged by way of an award for costs. In the circumstances, I allow this application and order that the draft amended plaint be deemed as duly filed on payment of the requisite court fees. The same be served on the defendants within 7 days of the date hereof. The defendant is given leave to file amended defence within 15 days of such service.
The plaintiff/applicant to pay the defendant costs of defending the application.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 29th day of June 2009.
In presence of:- Mr. Okwaro for Applicant.
N/A for Respondent.