[2017] KEELC 3622 (KLR)
The court found that since the matter had not proceeded to hearing due to interlocutory applications, and the defendant had not demonstrated prejudice, leave to amend the plaint should be granted. On the extension of interim injunction, the court held that the plaintiffs had not been indolent, as the file had been...
Source-derived case information.
- Citation
- [2017] KEELC 3622 (KLR)
- Parties
- Plaintiff: Saifudeen Abdullah Bhai; Plaintiff: Hussein Abdullah Bhai; Defendant: Zainab Mwinyi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 424 of 1996
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Plaint and Extend Interim Injunction
- Outcome
- Application allowed in part.
- Judges
- AA Omollo
- Legal Topics
- Amendment of Pleadings, Interim Injunctions, Pre Trial Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saifudeen Abdullah Bhai
Plaintiff
Hussein Abdullah Bhai
Plaintiff
Zainab Mwinyi
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Amend Plaint and Extend Interim Injunction
Legal Issues
- 1 Whether the plaintiffs should be granted leave to amend their plaint.
- 2 Whether the interim orders of injunction should be extended despite the lapse of time.
Ratio Decidendi
The court found that since the matter had not proceeded to hearing due to interlocutory applications, and the defendant had not demonstrated prejudice, leave to amend the plaint should be granted. On the extension of interim injunction, the court held that the plaintiffs had not been indolent, as the file had been active in court, and thus good cause was shown for extension. However, the extension was conditional upon the plaintiffs complying with pre-trial directions within 45 days, failing which the orders would stand vacated.
Court Disposition
Application allowed in part.
Orders
- Leave to amend the plaint is granted; the draft re-amended plaint is deemed duly filed upon payment of requisite court fees.
- The defendant may file an amended defence within 14 days of service if necessary.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MOMBASA
ELC CASE NO. 424 OF 1996
SAIFUDEEN ABDULLAH BHAI
HUSSEIN ABDULLAH BHAI…………......................PLAINTIFFS/APPLICANTS
-VERSUS-
ZAINAB MWINYI……………………..…………….DEFENDANT/RESPONDENT
RULING
1. This ruling is in respect of an application dated 13. 5.16 in which the plaintiffs/applicants sought leave to amend their plaint as well the extension of interim orders of injunction issued on 21. 2.2014 which they state has lapsed due to operation of the law.
2. The application is supported by the grounds on the face of it and the affidavit sworn by the 1st plaintiff. The application is opposed by the defendant’s replying affidavit. According to the defendant, more than 27 months have lapsed since the injunctive orders were issued therefore there are no orders to be extended. On amendment, she said what is sought to be introduced have always been within the knowledge of the plaintiffs.
3. This is a very old matter which has not been set down for hearing due to several interlocutory applications that have been filed and determined. Because it has not taken off, I find no reason to refuse the amendment. Whether the issues being brought by the amendment are time barred, I believe the defendant can state so in her defence. The prayer for further amendment is therefore allowed as the defendant has not said she will be prejudiced. She can file amended defence if need be. Consequently I grant request for amendment with an order that the draft re-amended plaint annexed be deemed as duly filed upon payment of the requisite court fees. The defence has 14 days of being served to file amended defence if need be.
4. In respect to the extension of the interim orders of injunction, I have perused the Court file and confirmed that the orders were issued on 21st February 2014. Subsequent to this, the plaintiffs filed an application for contempt of Court. This application was determined on 11th May 2016. Prior to this the Court determined on 14th November 2014 a preliminary objection raised by the defendant on validity of the contempt proceedings.
5. From February 2014 to date the file has been actively in Court. It is not like the plaintiffs went to sleep after obtaining the orders of injunction. I therefore cannot fault them for not having this matter concluded within a period of 12 months as is envisaged under the provisions of Order 40 rule 6. I am thus satisfied cause has been shown why the orders should be extended. However in order to limit the plaintiffs from delaying in fixing this matter for hearing, the orders are hereby extended on condition that the plaintiffs comply with the pre-trial directions within 45 days from today. In default the orders stand vacated. If they do comply then the orders of injunction shall remain in force till the suit is determined.
6. This being an old matter, I exercise my disrection and fix the same for pre-trial directions on 23. 3.2017. Costs of the application are awarded to the defendant in the cause.
Dated and delivered in Mombasa this 10th day of February 2017.
A. OMOLLO
JUDGE