[2001] KEHC 381 (KLR)
The court held that the amendment sought by the plaintiff was necessary to comply with the mandatory requirements of Order 7 rule (e) Civil Procedure Rules, as introduced by Legal Notice No. 36/2000. The judge found that the existence of a verifying affidavit with the original plaint was sufficient and that a new...
Source-derived case information.
- Citation
- [2001] KEHC 381 (KLR)
- Parties
- Plaintiff: Shiraz Shabudin Sayani; Defendant: Mrs. I. Rajput
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 431 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application to Amend Plaint
- Outcome
- Application for leave to amend plaint granted, subject to payment of costs.
- Legal Topics
- Amendment of Pleadings, Verifying Affidavit Requirements, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shiraz Shabudin Sayani
Plaintiff
Mrs. I. Rajput
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint to include a mandatory averment under Order 7 rule (e) Civil Procedure Rules.
- 2 Whether a verifying affidavit must accompany the amended plaint.
- 3 Whether the amendment is erroneous due to alleged pending related suits.
Ratio Decidendi
The court held that the amendment sought by the plaintiff was necessary to comply with the mandatory requirements of Order 7 rule (e) Civil Procedure Rules, as introduced by Legal Notice No. 36/2000. The judge found that the existence of a verifying affidavit with the original plaint was sufficient and that a new affidavit was not required upon amendment. The court rejected the defendant's argument that the amendment was erroneous due to other pending cases, stating that such an issue could only be addressed after the amendment was admitted and verified. The court also noted the delay in bringing the application and ordered the plaintiff to bear the costs thrown away and the costs of the...
Court Disposition
Application for leave to amend plaint granted, subject to payment of costs.
Orders
- Plaintiff to pay all costs thrown away and costs of the application, assessed at Kshs. 10,000.
- Amended plaint to be filed and served within 7 days.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 431 OF 2001
SHIRAZ SHABUDIN SAYANI …………………………… PLAINTIFF
VERSUS
MRS. I. RAJPUT ………………………………………… DEFENDANT
RULING
By Chamber Summons dated 5th February 2001 the plaintiff in the main suit seeks to amend his plaint by inserting a paragraph pleading that there is no other suit with similar facts and circumstances pending in this or any other court.
Such pleading is now a mandatory requirement introduced in Order 7 r (e) Civil Procedure Rule by Legal Notice No. 36/2000. It is an additional requirement of the particulars to be contained in the plaint. The amendment is sought under O 6 A r 3 Civil Procedure Rules which donates to the court very wide powers in applications for leave to amend pleadings. Indeed it is conceded by learned counsel for the Defendant / Respondent Mr. Suchak that amendments to pleadings are freely granted so long as they cause no prejudice to the other side.
Mr. Suchak however opposes the application on the ground that the averment in the intended amendment is erroneous since there are other cases between the parties which are pending before the Resident Magistrates Court. He also submitted that the amended plaint was not accompanied by a verifying Affidavit and the application was therefore not properly before the court. On this I think Mr. Suchak is not right. As Mr. Sifuna, learned counsel for the Applicant correctly submitted, there is already a verifying Affidavit filed with the original plaint. In law any amendment to pleadings goes back to the original pleadings and I take it therefore that the original verifying Affidavit need not be duplicated as there are not two but one pleadings in the plaint even after the amendment.
As for the submission that the intended amendment is erroneous, I think once again that Mr. Suchak is putting the cart before the horse. The amendment is not yet part of the pleadings and it would be premature to strike it out before it is admitted in evidence. When it is admitted, it will then be an averment verified on oath and will need a formal application to strike out if the Defendant has evidence that it is false. I need not therefore at this stage consider the substantial submissions made on both sides on the merits or other wise of the intended amendment.
On the whole I see no valid reason for objecting to the amendment sought. I agree with Mr. Suchak however that the application could have been made earlier and that there is considerable delay. The original plaint was filed on 18th September 2000 while this application was filed on 20th March, 2001. The defence was placed on record on 25th October 2000. For that reason the Plaintiff / Applicant shall bear all costs thrown away and also costs of the application for amendment, all assessed at Kshs. 10,000/-. Subject to such payment the application is granted. The Amended plaint shall be filed and served within 7 days.
Dated this 12th day of July, 2001
PHILIP N. WAKI
JUDGE