[2019] KEHC 11413 (KLR)
The court found that the proposed amendment, though challenged as time barred, was anchored in both law and fact. The factual basis required evidence, and therefore it could not be said to be time barred at this stage. No prejudice to the defendants was demonstrated or alleged if the amendment were allowed. Guided...
Source-derived case information.
- Citation
- [2019] KEHC 11413 (KLR)
- Parties
- Plaintiff: Richrd Ombui; Defendant: AMREF Kenya Country Office; Defendant: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 161 of 2012
- Procedural Posture
- Civil Suit / Ruling on Application to Further Amend Plaint
- Outcome
- Application to further amend the plaint allowed.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Amendment of Pleadings, False Imprisonment, Malicious Prosecution, Defamation, Costs of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richrd Ombui
Plaintiff
AMREF Kenya Country Office
Defendant
The Hon. Attorney General
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Further Amend Plaint
Legal Issues
- 1 Whether the proposed further amendment to the plaint is time barred and prejudicial to the defendants.
- 2 Whether the amendment should be allowed in the interests of justice.
Ratio Decidendi
The court found that the proposed amendment, though challenged as time barred, was anchored in both law and fact. The factual basis required evidence, and therefore it could not be said to be time barred at this stage. No prejudice to the defendants was demonstrated or alleged if the amendment were allowed. Guided by the cited authorities and the overriding objective to do justice to all parties, the court exercised its discretion to allow the amendment, subject to payment of the requisite fees and costs to the defendants. The defendants were granted liberty to file amended defences in response to the amended plaint.
Court Disposition
Application to further amend the plaint allowed.
Orders
- The amendment sought shall be effected on payment of required fees within 7 days of this ruling.
- Defendants are at liberty to file amended defences within 14 days of service of the amended plaint.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIG COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 161 OF 2012
RICHRD OMBUI............................................................ PLAINTIFF
VERSUS
AMREF KENYA COUNTRY OFFICE..............1ST DEFENDANT
THE HON. ATTORNEY GENERAL ...............2ND DEFENDANT
RULING
The plaintiff filed this suit against the defendant jointly and severally for damages for false imprisonment and or detention, malicious prosecution and defamation. There were also other prayers for exemplary and punitive damages, declaration that the plaintiff is entitled to salary arrears and resumption of duty with the 1st defendant , costs of defending a criminal case No. 491 of 2006, special damages and costs of the suit.
The defendants filed their respective defences but subsequently the plaintiff filed an amended plaint followed by the present application to further amend the plaint.
The present application is dated and filed on 25th of May, 2018 under Sections 1A, 1B, 3A and 63 of the Civil Procedure Act and Orders 8 Rules 3 and 8 and 51 of the Civil Procedure Rules. The reasons are set out in the body of the application and there is a supporting affidavit sworn by the advocate for the plaintiff.
The application is opposed and parties have filed their respective submissions.
I have gone through the cited provisions of law, the submissions by counsel on both sides and the cited authorities. I have also looked at the proposed amendment in relation to the original pleading and the first amended plaint.
The proposed amendment appears at paragraph 13 (a) and the question that arises is whether or not the said amendment is time barred and therefore prejudicial to the defendants.
From the wording of the proposed amendment, it is clear that it is both anchored in law and fact. It if were to be determined on the law alone, I would have no hesitation to disallow the same. However, evidence will have to be required to establish the factual angle of the proposed amendment and therefore it cannot be said to be time barred. Above all, however, is the fact that no prejudice has been alleged shall be visited upon the defendants if that amendment were to be allowed.
Guided by the authorities cited and the quest to do justice to all parties, I allow the amendment sought which shall be effected on payment of fees required within 7 days of this ruling. The defendants are at liberty to file amended defences to the said amendment within 14 days of service of the amended plaint. The plaintiff shall however pay to the defendants the costs occasioned by this application.
Dated, signed and delivered at Nairobi this 10th Day of April, 2019.
A.MBOGHOLI MSAGHA
JUDGE