[2010] KEHC 287 (KLR)
The court found that the Plaintiff's application to amend the plaint was unopposed, as the Defendant neither filed a response nor appeared at the hearing. The amendment sought was to correct a clerical error in the amount of debt claimed, and there was no evidence that allowing the amendment would prejudice the...
Source-derived case information.
- Citation
- [2010] KEHC 287 (KLR)
- Parties
- Plaintiff: N.V. Organon; Defendant: C. Mehta & Company Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 566 of 2009
- Procedural Posture
- Civil Case / Ruling on Application to Amend Plaint
- Outcome
- Application allowed; leave to amend plaint granted.
- Judges
- CM Njagi
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
N.V. Organon
Plaintiff
C. Mehta & Company Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the Plaintiff should be granted leave to amend its plaint to correct an error in the stated debt amount.
- 2 Whether the amendment would prejudice the Defendant.
Ratio Decidendi
The court found that the Plaintiff's application to amend the plaint was unopposed, as the Defendant neither filed a response nor appeared at the hearing. The amendment sought was to correct a clerical error in the amount of debt claimed, and there was no evidence that allowing the amendment would prejudice the Defendant. The court held that in the interest of justice, and in the absence of opposition or demonstrated prejudice, leave to amend should be granted. The court therefore allowed the application and made consequential orders regarding the filing and service of the amended plaint and the Defendant's right to amend its defence.
Court Disposition
Application allowed; leave to amend plaint granted.
Orders
- The Plaintiff is granted leave to amend its plaint in accordance with the draft annexed to the application.
- The amended plaint shall be deemed duly filed upon payment of the appropriate filing fees.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL & TAX DIVISION – MILIMANI
CIVIL CASE NO. 566 OF 2009
N.V. ORGANON ……………………………………...........................PLAINTIFF
VERSUS
C. MEHTA & COMPANY LIMITED …………….......................................DEFENDANT
R U L I N G
The application before the Court is brought by way of a Chamber Summons dated 22nd April, 2010, and taken out under Order VI A Rules 3 and 8of theCivil Procedure Rules; Section 3Aof theCivil Procedure Act;and all other enabling provisions of the law. The Plaintiff/Applicant thereby seeks orders that this honourable Court be pleased to grant leave to the Plaintiff/Applicant to amend its plaint in accordance with the annexed amended draft; that the amended plaint be deemed as duly filed and served; and that the costs of this application be provided for.
The application is supported by the annexed affidavit of Mwaniki Gachoka, Advocate, and is based on the grounds that an error was made when stating the debt owed to the Plaintiff as €153,253 instead of €152,694. 10; that it is in the interest of justice that the Plaintiff/Applicant be granted leave to correct the error on the face of the plaint; and that no prejudice will be occasioned to the Defendant if the amendment is allowed.
The Court record shows that after the application was filed on 26th April, 2010, it was duly served on the Respondent’s Advocates on 27th April, 2010. The latter did not file either a replying affidavit or grounds of opposition. And though the Respondents were served in sufficient time to attend Court for the hearing of the application, they did not do so. In such circumstances, it can only be inferred that they did not intend to challenge the application and the same is therefore unopposed.
The application accordingly succeeds, consequent whereupon I make the following orders –
(a)The Plaintiff/Applicant be and is hereby granted leave to amend its plaint in accordance with the draft amended plaint annexed to the application.
(b)The amended plaint be deemed as duly filed upon the payment of the appropriate filing fees.
(c)The amended plaint be served upon the Defendant within 7 days of filing.
(d)The Defendants be at liberty to file and serve an amended defence within 14 days of service.
(e)The costs of the amendment, if any, be borne by the Plaintiff in any event.
Dated and delivered at Nairobi this 29th day of July, 2010.
L. NJAGI
JUDGE