PHYLLIS WANGECHI GITONGA vs CHARTERHOUSE BANK LIMITED [2004] KEHC 2080 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL COURTS

CIVIL CASE NO.705 OF 2003

PHYLLIS WANGECHI GITONGA ::::::::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS

CHARTERHOUSE BANK LIMITED :::::::::::::::::::::::::::::::DEFENDANT

RULING

This is an application expressed to be brought under the

provisions of Order VIA Rule 3 of the Civil Procedure Rules and

Section 3A of the Civil Procedure Act Cap.21 of the Laws of Kenya.

The Plaintiff is the Applicant and seeks leave to amend her Plaint.

The reasons for the application are that the Plaint was filed in a hurry

and material particulars were omitted and that the amendment is

necessary for the determination of the real question in controversy

between the parties. It is further alleged that the Defendant shall not

suffer any prejudice if the amendment is granted. The application is

supported by an affidavit sworn by the Plaintiff. The application is

opposed and the Defendant has filed Grounds of Opposition and a

Replying Affidavit.

In support of the application Counsel for the Plaintiff argued that

the proposed amendment will ensure that all issues in dispute

between the parties are dealt with at once. Counsel emphasized that

the Defendant shall suffer no prejudice and as the application has

been made without delay the same should be allowed.

In opposition to the Plaintiff’s application, Counsel for the

Defendants submitted that the proposed amendment is an exercise in

futility and the application has been overtaken by events as the

prayers sought in the proposed amended plaint have been satisfied.

In Counsel’s view the application is merely intended to delay the sale

of the suit premises.

With respect the reasons advanced in opposition of the

application for leave to amend cannot defeat the present application.

The Defendant has not demonstrated any real prejudice it will suffer if the

application is granted. The argument that the application is

intended to delay sale of the suit premises is without basis as the

issue of injunction was dealt with by Mwera J. on 25th November,

2003.

It is now settled that amendments may be allowed at any time

before judgment provided that the damage which may arise as a

result of the amendments can be cured by way of costs. The

Defendant has not shown that if leave to amend is granted, it will

cause injustice to the Defendant or it will be injurious to it or that any

injury or damage will not be cured by an award of costs.

In the result, it is my view that this is a case where leave sought

ought to be allowed for the purposes of finally determining the real

issues in dispute between the parties to these proceedings. The

Plaintiff’s application is therefore allowed in terms of prayer 1 and 2.

The Defendant is granted leave to file an amended defence if

necessary within the next ten (10) days. The Defendant shall have

the costs of this application. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 8TH DAY OF JULY 2004.

F. AZANGALALA

AG. JUDGE

Read in the presence of: