[2004] KEHC 2005 (KLR)
The court held that procedural rules should not be applied in a manner that prejudices a litigant when the error is curable. The judge accepted the applicant's explanation for noncompliance with Rule 7A(2) of the Civil Procedure Code, noting that the omission was due to recent changes in the rules. The court found...
Source-derived case information.
- Citation
- [2004] KEHC 2005 (KLR)
- Parties
- Plaintiff: Timothy Odwori Makhoka; Defendant: Rama Lugu; Defendant: Suleiman Moni Charo
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 220 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application to Amend Plaint
- Outcome
- Application to amend plaint allowed with costs to the defendant.
- Legal Topics
- Amendment of Pleadings, Verifying Affidavit Requirements, Non Compliance With Procedural Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Odwori Makhoka
Plaintiff
Rama Lugu
Defendant
Suleiman Moni Charo
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the omission to comply with Rule 7A(2) of the Civil Procedure Code renders the plaint null and invalid.
- 2 Whether the plaintiff should be allowed to amend the plaint to comply with the new procedural requirements.
Ratio Decidendi
The court held that procedural rules should not be applied in a manner that prejudices a litigant when the error is curable. The judge accepted the applicant's explanation for noncompliance with Rule 7A(2) of the Civil Procedure Code, noting that the omission was due to recent changes in the rules. The court found that the error could be rectified by allowing the amendment of the plaint, rather than striking out the suit. The application to amend the plaint was therefore allowed, with the plaintiff ordered to file the amended plaint within 10 days and the defendant given leave to amend the defence within 15 days of service of the amended plaint.
Court Disposition
Application to amend plaint allowed with costs to the defendant.
Orders
- The application to amend the plaint is allowed.
- The amended plaint shall be filed within 10 days from the date of the ruling.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT MOMBASACIVIL SUIT NO. 220 OF 2001 TIMOTHY ODWORI MAKHOKA…………………….……PLAINTIFF =V E R S U S= 1. RAMA LUGU……………………………………….1ST DEFENDANT
2. SULEIMAN MONI CHARO……………………..2ND DEFENDANT
R U L I N G
The Applicant filed his Plaint on June 2000. On 5/5/2000 the procedure rules had been altered and it became mandatory to always plead in a Plaint the matters now sought to be added. I am satisfied with the explanation given for noncompliance with the new rule. There is a difference between omitting to file a verifying affidavit and omitting to include material under Rule 7A(2) Civil Procedure Code.
Furthermore, there is now a divided opinion in the High Court as to whether non-compliance with the new procedure (7A) makes a Plaint null and invalid.
For my part I am of the view that rules of procedure should not be used to the prejudice of a litigant where a step can be taken to correct the error.
I have considered the submissions of both counsel and the authorities submitted. I am inclined to allow the application which I hereby do. I grant the orders sought with costs to the Defendant.
Dated at Mombasa this 12th day of February, 2004.
JOYCE KHAMINWA J U D G E
I also order the Amended Plaint be filed within 10 days from to-day. Defence may be amended within 15 days of service of Amended Plaint.
JOYCE KHAMINWA J U D G E