[2007] KEHC 3521 (KLR)
The court found that the draft amendment to the defence did not set out sufficient facts to support the plea that the suit was filed out of time, as it failed to indicate the period of delay or provide particulars necessary for the limitation defence. The judge held that in matters involving land, a hearing is...
Source-derived case information.
- Citation
- [2007] KEHC 3521 (KLR)
- Parties
- Plaintiff: Thetu Mwangi Migwi; Defendant: James Munene Ndubi; Defendant: Hillary Munene Kamau
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 69 of 2005
- Procedural Posture
- Civil Case / Ruling on Application to Amend Defence
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Amendment of Pleadings, Limitation of Actions, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thetu Mwangi Migwi
Plaintiff
James Munene Ndubi
Defendant
Hillary Munene Kamau
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Defence
Legal Issues
- 1 Whether the defendants should be granted leave to amend their defence to plead that the suit was filed out of time.
- 2 Whether the draft amendment sufficiently sets out facts to support the limitation defence.
Ratio Decidendi
The court found that the draft amendment to the defence did not set out sufficient facts to support the plea that the suit was filed out of time, as it failed to indicate the period of delay or provide particulars necessary for the limitation defence. The judge held that in matters involving land, a hearing is necessary to establish whether the suit is indeed time-barred. Consequently, the application for leave to amend the defence was dismissed as it did not meet the threshold for granting such leave under the Civil Procedure Rules.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for leave to amend the defence is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Civil Case 69 of 2005
THETU MWANGI MIGWI…………………………...…………PLAINTIFF
VERSUS
JAMES MUNENE NDUBI…………….…….…………1ST DEFENDANT
HILLARY MUNENE KAMAU…………………………2ND DEFENDANT
RULING
Application dated 28/11/2006 seeks leave to amend the defence according to draft annexed. The application is based on the ground that suit was filed out of time and that although Notice of Raise Preliminary Objection was indicated there was no indication of the nature of Preliminary Objection to be raised.
I have examined the draft amendment and except the nature of the sections of law there are no facts to indicate the period of time that it is late. I have read grounds of opposition and I am of the view in matters of land a hearing is necessary to prove that suit is filed out of time.
I therefore dismiss the application with costs to the Respondent.
Dated this 6th November, 2007.
J. N. KHAMINWA
JUDGE