SHIRAZ SHABUDIN SAYANI vs MRS. I. RAJPUT [2001] KEHC 381 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL SUIT NO. 431 OF 2001

SHIRAZ SHABUDIN SAYANI …………………………… PLAINTIFF

VERSUS

MRS. I. RAJPUT ………………………………………… DEFENDANT

RULING

By Chamber Summons dated 5th February 2001 the plaintiff in the main suit seeks to amend his plaint by inserting a paragraph pleading that there is no other suit with similar facts and circumstances pending in this or any other court.

Such pleading is now a mandatory requirement introduced in Order 7 r (e) Civil Procedure Rule by Legal Notice No. 36/2000. It is an additional requirement of the particulars to be contained in the plaint. The amendment is sought under O 6 A r 3 Civil Procedure Rules which donates to the court very wide powers in applications for leave to amend pleadings. Indeed it is conceded by learned counsel for the Defendant / Respondent Mr. Suchak that amendments to pleadings are freely granted so long as they cause no prejudice to the other side.

Mr. Suchak however opposes the application on the ground that the averment in the intended amendment is erroneous since there are other cases between the parties which are pending before the Resident Magistrates Court. He also submitted that the amended plaint was not accompanied by a verifying Affidavit and the application was therefore not properly before the court. On this I think Mr. Suchak is not right. As Mr. Sifuna, learned counsel for the Applicant correctly submitted, there is already a verifying Affidavit filed with the original plaint. In law any amendment to pleadings goes back to the original pleadings and I take it therefore that the original verifying Affidavit need not be duplicated as there are not two but one pleadings in the plaint even after the amendment.

As for the submission that the intended amendment is erroneous, I think once again that Mr. Suchak is putting the cart before the horse. The amendment is not yet part of the pleadings and it would be premature to strike it out before it is admitted in evidence. When it is admitted, it will then be an averment verified on oath and will need a formal application to strike out if the Defendant has evidence that it is false. I need not therefore at this stage consider the substantial submissions made on both sides on the merits or other wise of the intended amendment.

On the whole I see no valid reason for objecting to the amendment sought. I agree with Mr. Suchak however that the application could have been made earlier and that there is considerable delay. The original plaint was filed on 18th September 2000 while this application was filed on 20th March, 2001. The defence was placed on record on 25th October 2000. For that reason the Plaintiff / Applicant shall bear all costs thrown away and also costs of the application for amendment, all assessed at Kshs. 10,000/-. Subject to such payment the application is granted. The Amended plaint shall be filed and served within 7 days.

Dated this 12th day of July, 2001

PHILIP N. WAKI

JUDGE