[2011] KEHC 2723 (KLR)
The court found that there is no legal bar preventing the 2nd Defendant from amending his defence at this stage of the proceedings. The allegations in the pleadings remain subject to proof at trial, and the amendment does not prejudice the Plaintiffs. The court therefore exercised its discretion to allow the...
Source-derived case information.
- Citation
- [2011] KEHC 2723 (KLR)
- Parties
- Plaintiff: Wilfred Josai Mkonji; Plaintiff: Grace Chawucha Mkoji; Defendant: George Patrick Mwashigadi; Defendant: Stephen Muchora Kagure; Defendant: Commissioner of Lands
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 252 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Amend Defence
- Outcome
- Application for leave to amend defence granted.
- Judges
- AI Tullu
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfred Josai Mkonji
Plaintiff
Grace Chawucha Mkoji
Plaintiff
George Patrick Mwashigadi
Defendant
Stephen Muchora Kagure
Defendant
Commissioner of Lands
Defendant
Procedural Posture
Civil Case / Ruling on Application to Amend Defence
Legal Issues
- 1 Whether the 2nd Defendant should be granted leave to amend his defence.
- 2 Whether there is any bar to the amendment at this stage of proceedings.
Ratio Decidendi
The court found that there is no legal bar preventing the 2nd Defendant from amending his defence at this stage of the proceedings. The allegations in the pleadings remain subject to proof at trial, and the amendment does not prejudice the Plaintiffs. The court therefore exercised its discretion to allow the amendment in the interest of justice and procedural fairness.
Court Disposition
Application for leave to amend defence granted.
Orders
- Prayer 1 of the application is granted; the 2nd Defendant is granted leave to amend his defence.
- The amended defence shall be filed and served within 14 days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 252 OF 2008
WILFRED JOSAI MKONJI ……….....................………………… …1ST PLAINTIFF
GRACE CHAWUCHA MKOJI …………......….............…………….. 2ND PLAINTIFF
VERSUS
1. GEORGE PATRICK MWASHIGADI ………............................……..1ST DEFENDANT
2. STEPHEN MUCHORA KAGURE …………........................………. 2ND DEFENDANT
3. COMMISSIONER OF LANDS …………..........................………… 3RD DEFENDANT
R U L I N G
This is an application for leave to amend the defence of the 2nd Defendant. The Plaintiff filed a Replying Affidavit in opposition.
However, upon a consent order that the application be disposed of by written submissions the Plaintiffs failed to file their written submission.
I have considered the application and the replying affidavit. I have also considered the written submissions by the 2nd Defendant. Despite the findings of this court that there was contempt in these proceedings, the contemnor was duly punished and the interim orders are still in force.
The case is still pending and it is not known how the rest of the case will go.
I think that there is no bar for the 2nd Defendant to amend his pleading. All allegations are still subject to proof on the merits.
I do grant prayer 1. The amended defence be filed and served within 14 days. Costs shall be in the course.
Dated and delivered this 11th March 2011
M. K. IBRAHIM
JUDGE