[2013] KEELC 30 (KLR)
The court held that the power to amend pleadings is intended to allow parties to ventilate the real issues in controversy and should be exercised with latitude unless the amendment would cause prejudice to the other party that cannot be compensated by costs. In this case, the court found no prejudice would be...
Source-derived case information.
- Citation
- [2013] KEELC 30 (KLR)
- Parties
- Plaintiff: Peris Wacera Kamoche; Defendant: Thegenge Enterprises Limited; Defendant: John M. Ngunjiri T/A Tango Auctioneers
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 179 of 2013
- Procedural Posture
- Civil Suit / Ruling on Application for Leave to Amend Plaint
- Outcome
- application for leave to amend plaint granted
- Legal Topics
- Amendment of Pleadings, Leave of Court, Eviction, Distress for Rent, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peris Wacera Kamoche
Plaintiff
Thegenge Enterprises Limited
Defendant
John M. Ngunjiri T/A Tango Auctioneers
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Leave to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint to include a claim for damages for goods destroyed or lost during an alleged arson incident.
- 2 Whether the proposed amendment would prejudice the defendants or substantially change the claim.
- 3 Whether the amendment is necessary for determining the real issues in controversy.
Ratio Decidendi
The court held that the power to amend pleadings is intended to allow parties to ventilate the real issues in controversy and should be exercised with latitude unless the amendment would cause prejudice to the other party that cannot be compensated by costs. In this case, the court found no prejudice would be suffered by the defendants if the amendment was allowed. The plaintiff's wish to introduce a claim for damages allegedly occasioned by the defendants was within her right, and the amendment was necessary for the just determination of the real issues in dispute. Accordingly, leave to amend the plaint was granted, with corresponding leave to the defendants to amend their defence.
Court Disposition
application for leave to amend plaint granted
Orders
- Plaintiff granted leave to amend her plaint in terms of the proposed draft plaint by filing and serving the same within twenty-one (21) days from the date of the ruling.
- Defendants granted corresponding leave to file an amended defence within fourteen (14) days of service of the amended plaint if they deem it necessary.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NAKURU
CIVIL SUIT NO. 179 OF 2013
PERIS WACERA KAMOCHE….................................................PLAINTIFF/RESPONDENT
VERSUS
THEGENGE ENTERPRISES LIMITED……...............................................1ST DEFENDANT
JOHN M. NGUNJIRI T/A TANGO AUCTIONEERS.. .........................................2ND DEFENDANT
RULING
By a plaint dated 30th May, 2007 the applicant Peris Wacera Kamoche, instituted this suit against the respondents, Thegenge Enterprises Limited and John M. Ngunjiri T/A Tango Auctionees seeking, among other orders, an order that the defendants be evicted from Nakuru Municipality Block 5/ 96 (''suit premises'') and the levy for distress be found illegal, perpetual injunction restraining the defendants, their servants and /or agents from taking possession of the butchery and hotel premises or giving them to a third party or in any way interfering with the plaintiff's quiet possession and enjoyment of the suit premises, the defendants compelled to reinstate the plaintiff back to the suit premises and an order against the defendants for return of the plaintiffs goods.
It is this plaint that the applicants now wish to amend to include the costs of the goods and items destroyed and /or lost on the night of 17th November, 2007 when the suit premises was set ablaze by the defendants. The time within which to amend the pleadings without leave having expired, the applicants have brought the application dated 6th March, 2013 seeking leave of the court to amend the plaint.
In their grounds of opposition dated 5th April, 2013 the defendants have objected to the proposed amendments. In a nutshell they state that the applicant seeks to substantially change his claim, the value of the goods is highly exaggerated based on imaginary figures and the applicant never reported these actions to the Police.
I have heard the rival submissions. From the outset, I must state that I do not see what prejudice the defendants will suffer if the plaint is amended. The power to amend pleadings is donated by the civil procedure Act section 100 and the civil procedure rules. The court of appeal in Central Kenya Ltd –Trust Bank Limited (2002) 2 E.A. 365 held inter alia that;-
“…a party would be allowed to make such amendments of pleadings as were necessary for determining the real issue in controversy or avoiding multiplying of suits…”
In the court of appeal’s view, a court of law is enjoined to be magnanimous in allowing amendments so as to allow parties ventilate the real issues in controversy. I agree with the reasons of the above decision that amendment of pleadings should be allowed with as great latitude as would allow the court to deal with the real controversy. In the present case, the plaintiff wishes to introduce a claim for damages allegedly occasioned by the defendants. I think it’s within their right to do so. In the circumstances therefore, I order that the plaintiff be granted leave to amend her plaint in terms of the proposed draft plaint by filing and serving the same within the next twenty one (21) days from the date of this ruling. The defendants are also granted corresponding leave to file an amended defence if they deem it necessary within Fourteen (14) days of service of the amended plaint. Costs in the cause. It is so ordered.
Dated, signed and delivered on this 4th day of October 2013.
L N WAITHAKA
JUDGE.
PRESENT
Ms Abongo holding brief for Mr Wachira Mbuthia
Mr Kahiga for the Defendant
Stephen Mwangi : Court Clerk