[2006] KEHC 2375 (KLR)
The court held that amendments to pleadings may be allowed at any stage of the proceedings, including the introduction of a new cause of action, provided the trial has not commenced and the amendment will assist in the determination of the real issues in controversy. However, the court found that the claim for...
Source-derived case information.
- Citation
- [2006] KEHC 2375 (KLR)
- Parties
- Plaintiff: Swan Millers Ltd; Defendant: James Ogumbo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 164 of 2000
- Procedural Posture
- Civil Suit / Ruling on Application to Amend Defence
- Outcome
- Application partly allowed.
- Legal Topics
- Amendment of Pleadings, Trusts in Land, Prescriptive Rights, Originating Summons, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Swan Millers Ltd
Plaintiff
James Ogumbo
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Amend Defence
Legal Issues
- 1 Whether the defendant should be granted leave to amend his defence before trial to include claims of trust and prescriptive rights.
- 2 Whether the amendment to include prescriptive rights is proper under the Civil Procedure Rules.
- 3 Whether the delay of over four years in seeking amendment disentitles the defendant to the orders sought.
Ratio Decidendi
The court held that amendments to pleadings may be allowed at any stage of the proceedings, including the introduction of a new cause of action, provided the trial has not commenced and the amendment will assist in the determination of the real issues in controversy. However, the court found that the claim for prescriptive rights cannot be introduced by way of a plaint and must be pursued by originating summons. Therefore, the defendant is granted leave to amend his defence only to the extent of introducing the issue of trust, but not prescriptive rights. The court also awarded costs of the application to the plaintiff, who may, if it chooses, amend its own pleadings at the defendant's...
Court Disposition
Application partly allowed.
Orders
- Leave granted to the defendant to amend his defence to include the issue of trust only.
- Claim for prescriptive rights excluded from the amendment.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU
Civil Suit 164 of 2000
SWAN MILLERS LTD ...............................................................................................PLAINTIFF
-VERSUS-
JAMES OGUMBO ...............................................................................................DEFENDANT
Coram J. W. Mwera, Judge
Mwamu for Defendant/Applicant
Wasuna for Plaintiff/Respondent
Raymond CC.
R U L I N G
Under Order 6A rule 3(5), of Civil Procedure Rules and Sections 100, 3A Civil Procedure Act, the defendant filed a chamber summons dated 25/4/2005 for orders that he amend his defence herein. That on the reconsideration of that defence, apparently filed here way back on 10/7/2000, it has become clear that the same should be amended so that the court will be in a better position to resolve all issues in controversy. That the step is sought before the trial of the case opens and the plaintiff will not be prejudiced; it may as well consider to amend (further?) its’ plaint; if need be.
A draft copy of amendments was appended to the supporting affidavit and Mr. Mwamu urged this court to grant them. That the defendant wished to argue that a trust was involved and fraud featured in the transaction in respect of that plot of land known as LR/BLOCK 7/465 - the suit property. In the same intended amendments, the defendant has added claims of prescriptive rights. Mr. Wasuna while opposing the application inter alia pointed out, and seemingly properly so, that prescriptive rights can only be waged by way of an originating summons and not a plaint. He added that the sought amendment had been delayed for over 4 years and that that should disentitle the applicant from orders in his favour. And that in any case, while all started off with trespass now the cause is being transformed in character to encompass a trust. Mr. Mwamu, even as he conceded that prescriptive rights can only be waged here by way of an originating summons, nevertheless urged this court to allow that part of the intended amendments that is merited.
In this court’s view, and applying Order 6A rule 3(1) of Civil Procedure Rules as cited, it may allow amendments to pleadings at any stage of the proceedings, on terms and costs deemed just and it may also direct the manner of the amendments. That can be done even if a new cause is created/substituted. Of course there are Grounds within which to allow that move.
Here the trial is yet to commence. The defendant perceives that the intended amendments will help the court in it’s determination of the cause. Let that be so but only as limited to the part of trust. A cause involving trust can only be brought to the court’s attention to determine, by way of a plaint. The granted orders exclude the intended claim on account of prescriptive rights. Those can only be brought by way of an originating summons. To that extent are orders granted. However, costs here go to the plaintiff, which may if it chooses amend its own pleadings - again at the defendant’s expense. The amended defence to be duly filed, paid for and served within usual time.
Orders accordingly.
Delivered on 16th day of May 2006.
J. W. MWERA
JUDGE
JM/hao