[2015] KEHC 5281 (KLR)
The court found that the proposed amendments to the plaint were necessary to bring out the real and current issues in controversy between the parties and would assist in the final adjudication of the matter. The court noted that the application was unopposed, the 1st Defendant would not suffer any prejudice, and the...
Source-derived case information.
- Citation
- [2015] KEHC 5281 (KLR)
- Parties
- Plaintiff: Zephania Ngaira Angweye; Defendant: Rodgers Senaji Mulemi; Defendant: Barclays Bank of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 768 of 2010
- Procedural Posture
- Civil Suit / Ruling on Application to Amend Plaint
- Outcome
- application allowed
- Judges
- DO Ogembo
- Legal Topics
- Amendment of Pleadings, Leave to Amend, Prejudice to Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zephania Ngaira Angweye
Plaintiff
Rodgers Senaji Mulemi
Defendant
Barclays Bank of Kenya Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Amend Plaint
Legal Issues
- 1 Whether the plaintiff should be granted leave to amend the plaint as per the draft annexed.
- 2 Whether the proposed amendments would cause prejudice to the defendants.
Ratio Decidendi
The court found that the proposed amendments to the plaint were necessary to bring out the real and current issues in controversy between the parties and would assist in the final adjudication of the matter. The court noted that the application was unopposed, the 1st Defendant would not suffer any prejudice, and the 2nd Defendant had ceased to participate in the proceedings. Therefore, the requirements under the Civil Procedure Rules for granting leave to amend pleadings were satisfied, and the application was allowed.
Court Disposition
application allowed
Orders
- Leave is granted to the plaintiff to amend the plaint in terms of the draft annexed to the application.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
CIVIL SUIT NO. 768 OF 2010
ZEPHANIA NGAIRA ANGWEYE............................PLAINTIFF/APPLICANT
VERSUS
RODGERS SENAJI MULEMI...................1ST DEFENDANT/RESPONDENT
BARCLAYS BANK OF KENYA LIMITED...2ND DEFENDANT/RESPONDENT
R U L I N G
INTRODUCTION
1. The Notice of Motion before the Court is dated 27th January 2015 and filed in court on 2nd February 2015. It seeks as the main prayer that leave be granted to the Plaintiff to amend his Plaint in terms of the draft amended Plaint annexed to his supporting affidavit. The application is premised on the grounds that the Plaintiff is desirous of amending the Plaint as proposed to bring to force the real and current issues in controversy between the parties.
2. The application is supported by the affidavit of the Plaintiff dated 27th January and filed in Court on 2nd February.
THE APPLICANTS CASE
3. The Applicant’s case is that after perusal of the 1st Defendant’s pleadings and affidavits in reply to the application for injunction it became necessary to amend the plaint to reflect the true and current position of this matter. The plaint has been amended in terms of the draft amended plaint annexed hereto and marked “ZNA” which sets out in sufficient detail the proposed amendments. The proposed amendments are intended to bring to the fore the real and current issues in controversy between the parties to the proceedings for final adjudication. The proposed amendments are intended to bring out the various frauds that were committed in relation to the suit premises. The Applicant states that no prejudice will be occasioned to the Defendants if this application is allowed, and that the amendments are necessary to enable the case to be heard on its merits.
ANALYSIS AND DISPOSAL:
4. The application is not opposed. The 1st Defendant, despite being served with the application pursuant to the affidavit of service dated and filed in Court on 15th April 2015, has not deemed if fit to respond to the application, while the 2nd Defendant ceased to have any interest in this matter and with the leave of this court has since stopped attending these proceedings.
5. The issue for this court to determine then is whether the application is merited. Under the Civil Procedure Rules, an amendment can be allowed by the court at any time of proceedings before a judgement is pronounced provided such amendment does not cause prejudice to the Respondent. I have perused the annexed draft of the proposed amended Plaint. The issues raised are those that will help this court to determine all the issues before the court. The amendments will also not cause any prejudice to the 1st Defendant.
6. Pursuant to the foregoing paragraphs of this ruling, the Notice of Motion application herein dated 27th January 2015 and filed in court on 2nd February 2015 is allowed with costs in the cause.
Orders accordingly.
DATED, READ AND DELIVERED AT NAIROBI THIS 30TH DAY OF APRIL 2015
E. K. O. OGOLA
JUDGE
PRESENT:
Mr. Muhindi holding brief for Khaminwa for the Plaintiff
No appearance for the Defendants
Teresia – Court Clerk