[2010] KEHC 510 (KLR)
The court held that amendments to pleadings before hearing should generally be allowed unless they cause injustice to the other party that cannot be compensated by costs. In this case, any prejudice to the defendant could be compensated by an award of costs. The court therefore allowed the plaintiff's application to...
Source-derived case information.
- Citation
- [2010] KEHC 510 (KLR)
- Parties
- Applicant: Peter Njuguna Murima; Respondent: Postal Corporation of Kenya
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2 of 2003
- Procedural Posture
- Civil Suit / Ruling on Application to Amend Plaint
- Outcome
- Application to amend plaint allowed with costs to the defendant.
- Legal Topics
- Amendment of Pleadings, Malicious Prosecution Claims, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Njuguna Murima
Applicant
Postal Corporation of Kenya
Respondent
Procedural Posture
Civil Suit / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint to include a claim for damages for malicious prosecution.
- 2 Whether such amendment would cause injustice or prejudice to the defendant.
Ratio Decidendi
The court held that amendments to pleadings before hearing should generally be allowed unless they cause injustice to the other party that cannot be compensated by costs. In this case, any prejudice to the defendant could be compensated by an award of costs. The court therefore allowed the plaintiff's application to amend the plaint, with costs to the defendant in any event.
Court Disposition
Application to amend plaint allowed with costs to the defendant.
Orders
- Leave granted to the plaintiff to amend the plaint as sought in the application dated 8th April 2010.
- Costs of the application awarded to the defendant in any event.
Full Case Text
Judgment text and source record
17 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO. 2 OF 2003
PETER NJUGUNA MURIMA......................................................................PLAINTIFF/APPLICANT
VERSUS
POSTAL CORPORATIONOF KENYA...............................................DEFENDANT/RESPONDENT
RULING
The plaintiff seeks through his Chamber Summons dated 8th April 2010, leave of this court to amend his plaint. He avers in the affidavit in support of the application that at the time of filing this suit, there was a criminal case pending against him which had not but has now been finalized and he has been acquitted. He therefore wishes to amend his plaint and include a claim for damages for malicious prosecution.
The defendant opposes the application terming it fatally incompetent and hopelessly misconceived. Its Acting Corporation Secretary avers in his replying affidavit that the Attorney General who prosecuted the plaintiff in the criminal case not being a party to this suit, a claim for malicious prosecution against the defendant alone prosecution is unsustainable. Moreover, he further avers, the plaintiff was not acquitted. The criminal case against him was withdrawn and that is not an acquittal.
I have considered the matter. Lest I prejudice the hearing of this case, I do not wish to express any view on the defendant’s contention that a claim for malicious prosecution is unsustainable if the attorney General is not a party to this suit or that the withdrawal of the criminal case against the plaintiff does not amount to an acquittal.
The law is quite clear on amendments. In Eastern Bakery Vs Castelino [1958] EA at p.462, Sir Kenneth O’Cnnor, P., set out in brief the principles which should guide the cour when dealing with applicatiuons for amendments thus:-
“Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs.”
No prejudice shall be caused to the defendant in this case which cannot be compensated by an award of costs if the amendment is
allowed. I therefore allow this application with costs to the defendant in any event.
DATED this 26th day of November, 2010.
D. K .MARAGA
JUDGE