[2004] KEHC 439 (KLR)
The court held that affidavits, being statements of truth, cannot be amended once filed, as supported by precedent. The court further found that Order XX Rule 7(2) of the Civil Procedure Rules is discretionary and not mandatory, and failure to submit a draft decree for approval to the other party is not fatal to...
Source-derived case information.
- Citation
- [2004] KEHC 439 (KLR)
- Parties
- Plaintiff: Republic; Respondent: Resident Magistrates Court Mks.; Defendant: Stephen Maundu Muia
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 67 of 1997
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Pleadings
- Outcome
- application dismissed with costs to respondent
- Judges
- RPV Wendoh
- Legal Topics
- Amendment of Pleadings, Affidavit Practice, Execution of Decrees
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Plaintiff
Resident Magistrates Court Mks.
Respondent
Stephen Maundu Muia
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Amend Pleadings
Legal Issues
- 1 Whether the applicant should be granted leave to amend his application and supporting affidavit.
- 2 Whether an affidavit can be amended under the Civil Procedure Rules.
- 3 Whether failure to submit a draft decree for approval is fatal to execution.
Ratio Decidendi
The court held that affidavits, being statements of truth, cannot be amended once filed, as supported by precedent. The court further found that Order XX Rule 7(2) of the Civil Procedure Rules is discretionary and not mandatory, and failure to submit a draft decree for approval to the other party is not fatal to execution unless there is a complaint about the contents or accuracy of the decree, which was not the case here. As the applicant did not demonstrate that the decree was improperly drafted or contained errors, there was no basis for granting leave to amend the application or the supporting affidavit. The application was therefore dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to respondent
Orders
- The application to amend the chamber summons and supporting affidavit is refused and dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL MISC. 67 OF 1997
REPUBLIC…………………………………………PLAINTIFF
VERSUS
RESIDENT MAGISTRATES COURT MKS. &
STEPHEN MAUNDU MUIA……………………..DEFENDANT
R U L I N G
This is the defendants applicants chamber summons dated 18. 2.2004 brought under section 100 and 3A Civil Procedure Act, Order VI Rule 3 Civil Procedure Rule seeking leave of the court to be granted to the applicant to amend his application dated 11. 2.2004 as per the draft annexed to the application and that the draft be deemed as filed and served.
The grounds upon which the application is brought are found on the body of the application which are that there are new developments after the application was filed and they had to add a new prayer that was left out which is that it had been presumed that the decree extracted had been sent to the defendant/applicants for approval but it was discovered that it was not and that they want to have the execution declared null and void. The application is also supported by the affidavit of the advocate Mr. Masika who further contents that there was no decree extracted or send to the advocates for approval as required by order XXR 7(2) Civil Procedure Rule.
The application was opposed and grounds of opposition were filed to the effect that the application is misconceived, bad in law, and has no legal basis and that an affidavit cannot be amended. Counsel further submitted that an affidavit is not a pleading and cannot be amended and further that the applicants intents to bring in a new cause of action i.e. a declaration that execution was unlawful which requires evidence and cannot be tried in an application.
Counsel for respondent relied on the case of the EASTERN & SOUTHERN AFRICAN DEVT. BANK VERSUS AFRICAN GREENFILEDS LTD HCCC 1189/00 where the Judge ruled that an affidavit cannot be amended as it is the truth and the truth cannot be amended. The applicant seeks to amendl his affidavit annexed to the application dated 11. 2.2004.
I agree with the ruling in the above cited case that counsel cannot amend his affidavit. He has told the court the truth in his earlier affidavit annexed to application dated 11. 2.2004. He cannot change it. The court cannot allow an applicant to amend his affidavit.
The main reason for seeking this amendment is that order XXR7 (2) was not complied with. I have seen a decree on the file. Order XX Rule 7 (2) is not a mandatory provision. It is discretionary. A party may prepare a draft decree and submit for approval to the other party. Failure to submit a decree for approval by the other party cannot be fatal to an execution unless the counsel is complaining that the decree was not properly drafted which is not the case here. The applicant has not explained that the contents of the decree are improper or that figures are wrong. The court will not make orders in vain,. There would be no reason for allowing amendment of the chamber summons as it stands and the application is therefore refused and dismissed with costs to respondent.
Dated, read and delivered at Machakos this 18th day of March, 2004.
R. WENDOH
JUDGE