[2005] KEHC 1290 (KLR)
The court found that while the proposed amendment was argumentative and repetitive, it did not introduce a new cause of action except for pleading particulars of fraud. The court held that the plaintiff should be allowed to further amend the plaint, provided the amendment is drafted more intelligibly and avoids...
Source-derived case information.
- Citation
- [2005] KEHC 1290 (KLR)
- Parties
- Plaintiff: Welsa Bange Oganda; Defendant: Industrial Commercial Dev. Cor; Defendant: Coast Professional Freighters Ltd.; Defendant: Nadhia Limited; Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 50 of 1998
- Procedural Posture
- Civil Suit / Application for Leave to Further Amend Plaint
- Outcome
- application allowed
- Judges
- DK Maraga
- Legal Topics
- Amendment of Pleadings, Leave of Court, Limitation of Actions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Welsa Bange Oganda
Plaintiff
Industrial Commercial Dev. Cor
Defendant
Coast Professional Freighters Ltd.
Defendant
Nadhia Limited
Defendant
Attorney General
Defendant
Procedural Posture
Civil Suit / Application for Leave to Further Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to further amend the plaint.
- 2 Whether the proposed amendment introduces a new cause of action or is prejudicial to the defendants.
- 3 Whether the application for amendment is made in good faith or is an abuse of process.
Ratio Decidendi
The court found that while the proposed amendment was argumentative and repetitive, it did not introduce a new cause of action except for pleading particulars of fraud. The court held that the plaintiff should be allowed to further amend the plaint, provided the amendment is drafted more intelligibly and avoids repetition, in accordance with Order 6 Rule 3(1) of the Civil Procedure Rules. The court was not persuaded that the amendment would cause prejudice to the defendants or that it was made in bad faith. The application was therefore allowed, with costs in the cause.
Court Disposition
application allowed
Orders
- Plaintiff granted leave to further amend the plaint, not as per the draft annexed, but to redraft it more intelligibly and avoid repetition, in accordance with Order 6 Rule 3(1).
- Costs of the application shall be costs in the cause.
Full Case Text
Judgment text and source record
17 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Suit 50 of 1998
WELSA BANGE OGANDA …………………… PLAINTIFF
- Versus -
1. INDUSTRIAL COMMERCIAL DEV. COR
2. COAST PROFESSIONAL FREIGHTERS LTD.
3. NADHIA LIMITED
4. ATTORNEY GENERAL ………………… DEFENDANTS
R U L I N G
This is an application for leave to further amend the plaint. It is argued for the plaintiff that the proposed amendment is intended to bring out facts on the matters in issue and that no prejudice will be caused to the defendants.
Mr. Munyithya appearing for the second and third defendants and holding brief for M/s Kamau Kania & Co. Advocates for the first defendant contended that the application is incompetent and bad in law as the first amendment was done without leave. Counsel further argued that the proposed amendment is argumentative and is like a written submission and that it introduces a new cause of action which will cause prejudice to the second defendant. Opposing the application on behalf of the forth defendant, Mr. Okello argued that the application is not made in good faith and that the plaintiff has been indolent. Basing his argument on the Court of Appeal decision in Joseph Ochieng & Others Vs First National Bank of Chicago Civil Appeal No. 149 of 1991Mr. Okello further argued that if the application is allowed it will deny the fourth defendant the right to plead limitation.
I have considered these submissions along with the proposed amendment. Whereas I agree with Mr. Munyithya that the proposed amendment appears argumentative and repetitive, I nevertheless find that the plaintiff has a point he wishes to bring out if only he can avoid that and draft the further amended plaint a little more intelligibly. Other than pleading particulars of fraud the proposed amendment does not introduce a new cause of action as argued by Mr. Okello. I therefore allow the application and grant the plaintiff leave to further amend his plaint not as per the draft annexed to the supporting affidavit but, bearing in mind the provisions of Order 6 Rule 3(1), as I have said, to redraft it more intelligibly and avoid repetition. Costs of the application shall be costs in cause.
DATED and delivered this 20th day of May 2005.
D.K. MARAGA
JUDGE