[2010] KEHC 2580 (KLR)
The court found that the plaintiffs had provided reasonable justification for the delay in filing the amended plaint, namely, service just before the Christmas vacation and subsequent illness of counsel. The absence of opposition from the defendant and the fact that judgment had not yet been entered further...
Source-derived case information.
- Citation
- [2010] KEHC 2580 (KLR)
- Parties
- Plaintiff: Rispar Kerubo Onsare & Another; Defendant: Credit Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 36 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Extend Time to File Amended Plaint
- Outcome
- application granted
- Legal Topics
- Extension of Time, Amendment of Pleadings, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rispar Kerubo Onsare & Another
Plaintiff
Credit Bank Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Extend Time to File Amended Plaint
Legal Issues
- 1 Whether the plaintiffs should be granted an extension of time to file an amended plaint out of time.
- 2 Whether the absence of opposition from the defendant justifies granting the application.
Ratio Decidendi
The court found that the plaintiffs had provided reasonable justification for the delay in filing the amended plaint, namely, service just before the Christmas vacation and subsequent illness of counsel. The absence of opposition from the defendant and the fact that judgment had not yet been entered further supported the exercise of the court's discretion in favour of the plaintiffs. Accordingly, the court granted the application to extend time for filing the amended plaint as prayed.
Court Disposition
application granted
Orders
- Order 1 of the Notice of Motion dated 3rd February, 2010 is granted as prayed.
- Costs in the cause.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 36 of 2008
RISPAR KERUBO ONSARE & ANOTHER ……………. PLAINTIFFS
VERSUS
CREDIT BANK LIMITED ………………………………. DEFENDANT
R U L I N G
By this application, the plaintiffs seek an order that time within which to file an amended plant by the plaintiffs be enlarged or extended and the plaintiffs be allowed to file their amended plaint out of time.The application is brought by a Notice of Motion under Sections 3, 3Aand 95 of the Civil Procedure Act,and Order XLIX Rule 5 of the Civil Procedure Rules.
The reasons given for the delay in making the application are that the applicants were served by the defendant just before the commencement of the Christmas Vacation, and reopened on11th January, 2010. After the reopening, Counsel for the plaintiffs fell sick, thereby making it difficult for them to file the amended defence on time.
The respondent has not filed any replying affidavit or grounds of opposition.At the hearing, Mr. Ashitiva for the respondents told the court that basically, he was not opposed to the application.However, he had written a letter applying for judgment, but the judgment had not yet been entered.Since it has not yet been entered, it would not be fair to deny the applicants a chance to prosecute their own application which has been set down for hearing.
On account of the foregoing, and seeing that the application for extension for time to file the amended plaint out of time is not opposed, order 1 of the application by Notice of Motion dated3rd February, 2010is hereby granted as prayed.
Costs in the cause.
DATED and DELIVERED atNAIROBIthis 15th day of April, 2010.
L. NJAGI
JUDGE