[2014] KEHC 7169 (KLR)
The court found that the applicant's request to amend the plaint was justified as it sought only to correct the description of the suit property in light of a new Registry index map. The amendment did not change the cause of action and would not prejudice the respondents. The court rejected the argument that...
Source-derived case information.
- Citation
- [2014] KEHC 7169 (KLR)
- Parties
- Plaintiff: Obed Readon Onyango; Defendant: Florence Juma Nabiswa; Defendant: Sarah Chepkemboi Nabiswa
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 93 of 1997
- Procedural Posture
- Civil Suit / Ruling on Application for Leave to Amend Plaint
- Outcome
- application allowed
- Judges
- EO Obaga
- Legal Topics
- Amendment of Pleadings, Description of Suit Property, Registry Index Map, Prejudice to Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Obed Readon Onyango
Plaintiff
Florence Juma Nabiswa
Defendant
Sarah Chepkemboi Nabiswa
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Leave to Amend Plaint
Legal Issues
- 1 Whether the applicant should be granted leave to further amend the plaint to correctly describe the suit property.
- 2 Whether repeated amendments to the plaint constitute an abuse of court process or cause prejudice to the respondents.
Ratio Decidendi
The court found that the applicant's request to amend the plaint was justified as it sought only to correct the description of the suit property in light of a new Registry index map. The amendment did not change the cause of action and would not prejudice the respondents. The court rejected the argument that repeated amendments constituted an abuse of process, holding that each application must be considered on its own merits. The court emphasized that pleadings must accurately reflect the property in dispute to ensure that oral evidence aligns with the pleadings. Accordingly, the application for leave to amend was allowed, with the applicant directed to file the amended plaint within 14...
Court Disposition
application allowed
Orders
- The applicant is granted leave to file a further amended plaint within 14 days from the date of the ruling.
- A response, if any, should be filed as per the Civil Procedure Rules from the date of service.
Full Case Text
Judgment text and source record
21 paragraphs
R E P U B L I C O F K E N Y A
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL SUIT NO. 93 OF 1997
OBED READON ONYANGO …........................... ] PLAINTIFF
VERSUS
FLORENCE JUMA NABISWA …..................... ... ] 1ST DEFENDANT
SARAH CHEPKEMBOI NABISWA..…................. ] 2ND DEFENDANT
_____________________________________________________________
R U L I N G
The applicant brought a notice of motion dated 16th October 2013 seeking the court's leave to file a further amended plaint. The applicant contends that the plaint as it currently stands describes the suit property as plot No. 52. The applicant depones that he has since learned that the suit property is plot No. 225 as per the new approved Registry index map. It is for this reason that he seeks leave to amend the plaint so as to properly describe the suit property in accordance with the current status.
The application was opposed by Mr. Onyancha Advocate for the respondents based on a replying affidavit of the respondents sworn on 1/11/2013. The respondents contend that the current application is an abuse of the process of court in that the applicant has amended the plaint three times before and that the current amendment is meant to delay the conclusion of this case. The respondents contend that the many amendments are a pointer to the fact that the plaintiff does not know the property he is claiming.
I have gone through the applicant's application as well as the opposition to the same by the respondents. The applicant is merely seeking to have the correct description of the property. The amendment will not prejudice the respondents in any way.
It has been argued by Mr. Onyancha that the change in description of the property can be taken care of during the hearing. I do not agree with Mr. Onyancha's argument. A party is at liberty to correctly describe the property he is claiming in the pleadings. This is the only way evidence adduced orally can be aligned to the pleadings. The applicant is not changing the cause of action and as I have said hereinabove, this amendment will not prejudice the respondents. The mere fact that the applicant has amended the plant thrice before is not a bar to grant of a fourth amendment. Each application should be considered on its own merits. The court has been told that the amendment has been necessitated by introduction of a new Registry index map. The applicant should be granted opportunity to properly describe the property he is claiming. I find that the application is well founded. I allow the same with costs. The applicant shall file an amended plaint within 14 days from the date of this ruling. A response if any should follow as per the Civil Procedure Rules from the date of service.
It is so ordered.
Dated, signed and delivered at Kitale on this 30th day of January 2014.
E. OBAGA
JUDGE
In the presence of Mr. Kamau for Plaintiff/Applicant and Mr. Onyancha for defendant/Respondent. Court clerk – Kassachoon.
E. OBAGA
JUDGE
30/1/2014