[2010] KEHC 1476 (KLR)
The court held that the amendment sought by the plaintiff would not cause any prejudice or hardship to the defendant, as it merely abandoned the claim for interest at 17% and restricted the claim to the admitted sum with interest at court rates. The court emphasized that amendments to pleadings are generally allowed...
Source-derived case information.
- Citation
- [2010] KEHC 1476 (KLR)
- Parties
- Plaintiff: Twiga Motors Limited; Defendant: Hon. Dalmas Otieno Onyango
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 706 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Amend Plaint
- Outcome
- application allowed
- Legal Topics
- Amendment of Pleadings, Summary Judgment, Interest Awards, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Twiga Motors Limited
Plaintiff
Hon. Dalmas Otieno Onyango
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be allowed to amend the plaint to abandon the claim for interest at 17% and restrict the claim to the admitted sum with interest at court rates.
- 2 Whether the amendment would cause prejudice or hardship to the defendant.
- 3 Whether the application was properly brought by chamber summons instead of notice of motion.
Ratio Decidendi
The court held that the amendment sought by the plaintiff would not cause any prejudice or hardship to the defendant, as it merely abandoned the claim for interest at 17% and restricted the claim to the admitted sum with interest at court rates. The court emphasized that amendments to pleadings are generally allowed to ensure that the real questions in controversy are determined, and that the form of the application (chamber summons versus notice of motion) was not fatal to the application. Accordingly, the application to amend the plaint was allowed, with directions for filing and serving the amended pleadings within specified timelines, and costs of the application awarded to the...
Court Disposition
application allowed
Orders
- The applicant is allowed to amend the pleadings in terms of the draft amended plaint and to file and serve within 14 days.
- The defendant will have 14 days after service within which to file the amended defence.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Case 706 of 2008
TWIGA MOTORS LIMITED ………………………………….PLAINTIFF
VERSUS
HON. DALMAS OTIENO ONYANGO………………………DEFENDANT
RULING
1. A ruling by Khaminwa J delivered on 21st October 2009 allowed judgment for the admitted sum of Ksh.12,705,095/- in favour of the plaintiff.In that application the plaintiff sought for judgment in terms of paragraph 3 of the Plaint and they also sought for interest at 17% compounded monthly from the date of filing.On 12th January 2010 the applicant filed a chamber summons under Order VI A rule 3,4 and 8 of the Civil Procedure Rules seeking for orders that the plaint be amended in terms of the draft amended defence .The amendment basically takes away the other claim except for the sum of Ksh.12,705,095/- with interest at court rates until full payment.This application is based on the grounds that it is necessary to amend the plaint in order to precisely plead the real questions in controversy between the parties .The plaintiff also wishes to abandon the claim of interest at the rate of 17%.
2. This application was opposed by the respondent.Counsel relied on the grounds of objection on points of law.It was submitted that the matter should proceed for hearing to determine the costs.There are also some payment which were made by the defendants and they have not been reflected.The plaintiff having sought for summary judgment should proceed but not make an application seeking for another judgment by way of amendments.The application was also faulted because it was brought by way of chamber summons instead of a notice of motion.
3. As I understand it this application seeks to amend the defence.Application for amendment are freely allowed under the provisions of
Order VIAso as to bring all the issues in controversy for determination.An application for amendment can be brought at any time and the issue to determine is whether the amendment will cause any hardship or prejudice to the opposite side.I see no prejudice that will be caused to the opposite side by allowing an amendment which takes away the other claims and seeks for interest rate at court rates instead of 17%.Moreover, I have nothing to do with the ruling where summary judgment was entered for the plaintiff.The application before me is merely for amendment of the pleadings.Accordingly, I allow the application.The applicant is allowed to amend the pleadings in terms of the draft amended plaint and to file it and serve within14 days.Similarly the defendant will have 14 days after service within which to file the amended defence.Costs of this application to the defendant.
RULING READ AND SIGNED ON 23RD July 2010 ATNAIROBI.
M.K. KOOME
JUDGE