[2012] KEHC 2029 (KLR)
The court found that if the applicant proceeded with incorrect property numbers, she would be denied justice. The Constitution requires courts to prioritize substantive justice over procedural technicalities. Allowing the amendment would enable the applicant to present the true facts and ensure her case is properly...
Source-derived case information.
- Citation
- [2012] KEHC 2029 (KLR)
- Parties
- Applicant: Rachel Mwihaki Gatabaki; Respondent: Njehu Gatabaki; Suraya Property Group Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 29 of 2009
- Procedural Posture
- Civil Suit / Ruling on Application to Amend Pleadings
- Outcome
- Application for amendment granted.
- Judges
- CM Njagi
- Legal Topics
- Amendment of Pleadings, Procedural Technicalities, Access to Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rachel Mwihaki Gatabaki
Applicant
Njehu Gatabaki
Respondent
Suraya Property Group Ltd
Procedural Posture
Civil Suit / Ruling on Application to Amend Pleadings
Legal Issues
- 1 Whether the applicant should be granted leave to amend the property number in the pleadings to reflect the correct property.
- 2 Whether the alleged errors were typographical or substantive, affecting different properties.
Ratio Decidendi
The court found that if the applicant proceeded with incorrect property numbers, she would be denied justice. The Constitution requires courts to prioritize substantive justice over procedural technicalities. Allowing the amendment would enable the applicant to present the true facts and ensure her case is properly adjudicated. The court was satisfied that the application for amendment was meritorious and granted it, with liberty to the respondent to file a replying affidavit upon service of the amended pleadings.
Court Disposition
Application for amendment granted.
Orders
- The application for amendment is granted as prayed.
- The respondent is at liberty to file a replying affidavit within 14 days of service of the amended Originating Summons.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Suit 29 of 2009
RACHEL MWIHAKI GATABAKI …………....………..….. APPLICANT
VERSUS
NJEHU GATABAKI…………………………………….. RESPONDENT
SURAYA PROPERTY GROUP LTD….….....…....INTERESTED PARTY
R U L I N G
When this matter came for hearing on 1st October, 2012 Ms. Thongori for the Applicant sought leave of the court to correct some typographical errors in respect of property LR No. 5890/3 for that number to read LR No. 5980/3. Subsequently, the said number was altered to LR No. 28223/2. Mr. Muriuki for the Respondent opposed the application on the grounds, inter alia, that it was not a typing error as alleged by Ms. Thongori and that these numbers described different plots in the names of different persons. In reply, Ms. Thongori reiterated that they were typing errors as she was the one who typed the pleadings.
After considering the application for the amendments and the arguments of counsel, I take the view that if the numbers are wrongly typed, and the applicant proceeds with the wrong numbers, she will not get justice. The constitution is clear that in exercising judicial authority, the courts and tribunals are to be guided by, among others, the principle that justice should be administered without undue regard to procedural technicalities. In order to access justice, it is fair and proper for the Applicant to bring before the court what she considers to be the true facts of the matter. If she does not do so, then her application will not truly embody her case as she perceives it.Needless to say, she will be driven away from the judgment seat.
On account of the foregoing, I am satisfied that the application for amendment is meritorious and it is accordingly granted as prayed. In the same breath, the Respondent will be at liberty to file a replying affidavit within 14 days of service of the amended Originating Summons.
Orders accordingly.
DATEDand DELIVERED at NAIROBI this 3rd day of October, 2012
L. NJAGI
JUDGE