[2010] KEHC 2716 (KLR)
The court found that the only substantial amendment sought was the addition of a claim for refund of monies paid to the defendant for procurement of title deeds, which was necessary for the determination of the real issues in controversy. There was no evidence of prejudice to the defendant, who did not file any...
Source-derived case information.
- Citation
- [2010] KEHC 2716 (KLR)
- Parties
- Plaintiff: Patrick M. Mailu; Plaintiff: John Mutunga Nzau; Plaintiff: Pius M. Mwaka; Plaintiff: Fredric Syulu Musiva; Plaintiff: David Nyamu Mutisya; Respondent: County Council of Kitui
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 40 of 2005
- Procedural Posture
- Civil Case / Ruling on Application to Amend Plaint
- Outcome
- Application to amend plaint allowed.
- Judges
- I Lenaola
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick M. Mailu
Plaintiff
John Mutunga Nzau
Plaintiff
Pius M. Mwaka
Plaintiff
Fredric Syulu Musiva
Plaintiff
David Nyamu Mutisya
Plaintiff
County Council of Kitui
Respondent
Procedural Posture
Civil Case / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiffs should be granted leave to amend their plaint to include a claim for refund of monies paid to the defendant.
- 2 Whether the proposed amendment would prejudice the defendant.
Ratio Decidendi
The court found that the only substantial amendment sought was the addition of a claim for refund of monies paid to the defendant for procurement of title deeds, which was necessary for the determination of the real issues in controversy. There was no evidence of prejudice to the defendant, who did not file any response to the application. The court exercised its discretion to allow the amendment, holding that such amendments should be permitted where they facilitate the resolution of the real dispute between the parties and do not cause irreparable prejudice to the other side.
Court Disposition
Application to amend plaint allowed.
Orders
- Leave granted to the plaintiffs to amend their plaint as prayed.
- Defendant at liberty to amend statement of defence within 21 days of service of the amended plaint.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS
Civil Case 40 of 2005
1. PATRICK M. MAILU
2. JOHN MUTUNGA NZAU
3. PIUS M. MWAKA
4. FREDRIC SYULU MUSIVA
5. DAVID NYAMU MUTISYA ………………………….…………………PLAINTIFFS/APPLICANTS
VERSUS
COUNTY COUNCIL OF KITUI ………………………………………………………….. RESPONDENT
RULING
1. The Chamber Summons dated 5. 6.2009 seeks orders that leave be granted to the Plaintiffs to amend their Plaint. The Application is premised on the provisions of Order VIA Rules 3, 5, and 8 of the Civil Procedure Rules and their case is that the proposed amendments are necessary for purposes of determining the real issues in controversy and that no prejudice would be caused to the Defendants.
2. I have perused the annexed Amended Plaint and from what is deponed to in the Affidavit of John Mutunga Nzau, the only addition to the original Plaint by way of amendment is a claim for refund of monies allegedly paid to the Defendant by the Plaintiff to enable procurement of title deeds in Nduiyu and Mwakini Settlement Scheme.The only substantial part of the Plaint to be affected is therefore paragraph 9 thereof and an addition of the claim for refund of the monies in the event the claim for specific performance fails.The claim is replicated, as it should, in the prayers section of the Plaint.
3. I see no response by the Defendant and also see no reason to deny the proposed amendment.This court has unfettered discretion to order amendment of pleadings and as stated by Sachdeva J. in Kenya Cold Storage [1964] Ltd vs Overseas Food Services (Africa) Ltd [1982] KLR 453 “the general rule is that leave to amend will be granted if it will enable the real questions in issue between parties to be raised and where such an amendment will not occasion injury to the opposite party except such as can be sufficiently compensated for by costs.”
4. I agree and since there is no evidence of prejudice to the Dependent the Application dated 5. 6.2009 is allowed with no order as to costs.The Defendant shall be at liberty to amend with Statement of Defence within 21 days of service of the Amended Plaint.
5. Orders accordingly.
Isaac Lenaola
Judge
Countersigned and delivered at Machakos this 30th day of May 2010
H.P.G. WAWERU
JUDGE