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ELCAllowedNot stated in judgment· [2018] KEELC 217 (KLR)

Sunrise Orthopaedic & another & David Langat v Lectary Kibor Keiyo Lelei & another [2018] KEELC 217 (KLR)

Environment and Land Court (as constituted at Eldoret) / High Court of Kenya at Eldoret
3 December 2018
AOA. OMBWAYO
375 words in judgment
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The bottom line

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A Kenyan court confirmed plaintiffs can amend their case to target the real dispute, even after time limits have expired.

What this practically means

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Executive summary

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This is an interlocutory ruling by A. Ombwayo J at Eldoret on an application by Sunrise Orthopaedic & Trauma Hospital Limited and David Langat seeking leave to amend the consolidated and re-amended plaint in their suit against Dr. Lectary Kibor Keiyo Lelei and Sunrise Orthopaedic & Trauma Hospital Limited. The applicants said the amendment was necessary to determine the real issues in controversy, namely whether Sunrise Orthopaedic and Trauma Hospital Limited is entitled to L.R. Eldoret Municipality Block 8/90 and whether David Langat is entitled to an order compelling Dr. Lelei to refund Kshs. 21,470,686. The 1st defendant opposed through grounds of opposition, contending that no sufficient grounds were laid down, that the amendment would substitute the cause of action, and that the amendments were vitiated by the Limitation of Actions Act. The court held that amendment of pleadings with leave is provided for under Order 8 Rule 3 of the Civil Procedure Rules, 2010, conferring a wide discretion; that under Rule 3(2) an amendment may be allowed even where limitation has expired, and even where it substitutes a party or introduces a new cause of action. Finding the plaintiffs entitled to the orders sought, the court granted leave to amend the plaint as prayed, ordered the amended plaint to be filed and served within 2 days, the defendants to file and serve an amended defence within 3 days of service, and fixed mention for 10 December 2018. No costs order was made.

Key legal issues

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01

Whether the plaint should be amended to frame the real issues in controversy

Holding

Leave to amend was granted as the amendment would assist the court in determining the real question in controversy between the parties.

Reasoning

The court invoked Order 8 Rule 3 of the Civil Procedure Rules, 2010, which confers a wide discretion to allow amendment of pleadings on just terms. Rule 3(2) permits amendment even where limitation has expired, including amendments that substitute a party or introduce a new cause of action. Against that standard, the plaintiff was found entitled to the orders sought despite the 1st defendant's objections.

p. 2

Legal principles established

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  • The court has a wide discretion under Order 8 Rule 3 to allow amendment of pleadings on such terms as to costs or otherwise as may be just.
  • An amendment may be allowed even where the period of limitation has expired, including where it would substitute a party or introduce a new cause of action.

Court orders

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  1. 1.Leave granted to amend the plaint as prayed
  2. 2.The amended plaint to be filed and served within 2 days
  3. 3.The defendants to file and serve the amended defence within 3 days of service
  4. 4.Mention on 10.12.2018

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 8, Rule 3(1)
  • Civil Procedure Rules, 2010Order 8, Rule 3(2)
  • Limitation of Actions ActNot specified
Jurisdiction invoked
Order 8, Rule 3 of the Civil Procedure Rules, 2010 (amendment of pleadings)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sunrise Orthopaedic & another & David Langat v Lectary Kibor Keiyo Lelei & another [2018] KEELC 217 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/217/eng@2018-12-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.