[2007] KEHC 2291 (KLR)
The court held that the amendments sought by the applicant were straightforward and intended to clarify the plaintiff's case. Since the application was made before the hearing and there was no opposition from the respondent, the court found that no injustice would be occasioned to the respondent by allowing the...
Source-derived case information.
- Citation
- [2007] KEHC 2291 (KLR)
- Parties
- Appellant: Rodah Gatwiri; Respondent: Kathurima Mugambi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 62 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application for Leave to Amend Plaint
- Outcome
- application allowed
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Mesne Profits, Declaration of Ownership
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rodah Gatwiri
Appellant
Kathurima Mugambi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Leave to Amend Plaint
Legal Issues
- 1 Whether the applicant should be granted leave to amend the plaint to correct the date of alleged wrongful entry, include a prayer for declaration of ownership, and specify the date for mesne profits.
Ratio Decidendi
The court held that the amendments sought by the applicant were straightforward and intended to clarify the plaintiff's case. Since the application was made before the hearing and there was no opposition from the respondent, the court found that no injustice would be occasioned to the respondent by allowing the amendments. Furthermore, any potential injustice could be compensated by costs. Therefore, the court exercised its discretion to allow the amendments as prayed in the application dated 22nd December 2006.
Court Disposition
application allowed
Orders
- Leave to amend the plaint in terms of the draft annexed plaint is granted.
- The draft plaint shall be deemed duly signed and served.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU
Civil Appeal 62 of 2004
RODAH GATWIRI ……......……..……………….APPELLANT
VERSUS
KATHURIMA MUGAMBI…………….………..RESPONDENT.
(FROM ORIGINAL CONVICTION AND SENTENCE IN MERU CIVIL CASE NO. 62 OF 2004)
R U L I N G
The applicant herein is seeking leave to amend her plaint by deleting the year 2002 and substituting therewith 1st October 2003 as the date the defendant is alleged to have wrongfully entered the suit land. Secondly the proposed amendment seeks to plead a prayer for declaration that the suit land belongs to the plaintiff. Finally the applicant is seeking to specify the date from which her claim for mesne profit accrued.
The application was argued exparte as there was neither a reply to it not attendance by the respondent or his counsel. Amendments to pleadings sought before the hearing should be freely allowed if the court is satisfied that no injustice shall be occasioned to the otherside and there will be injustice if the other side can be compensated by costs. The amendments sought cannot cause any injustice to the respondent. They are fairly straight forward, intended to clarify the plaintiff’s case.
For these reasons the application dated 22nd December 2006 is allowed. It is ordered that leave to amend the plaint in terms of the draft annexed plaint is granted. That draft plaint shall be deemed duly signed and served.
I make no orders as to costs.
Dated and delivered at Meru this13TH day ofJULY,2007.
W.OUKO
JUDGE