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ELCDismissedNot stated in the judgment· [2018] KEELC 3386 (KLR)

Francis Kihoro Maina & 2 others v Hannah Wanjiru Maina [2018] KEELC 3386 (KLR)

Environment and Land Court (as presided over by J G Kemei, Judge, at Murang'a)
16 April 2018
JKJ G Kemei
817 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a plaintiff to fix a mistake—suing a deceased person—by simply amending the court documents, without asking the court's permission first.

What this practically means

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Executive summary

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The plaintiff filed suit on 23 January 2018 against Hannah Wanjiru Maina, a deceased person, and served the summons on Damaris Wanjiru Maina, who was not then a party. Damaris entered appearance under protest through M/s Muchiri Wa Gathoni & Company Advocates and filed a preliminary objection seeking striking out of the plaint and notice of motion on grounds that the named defendant was deceased, that orders were sought against a non-party, and that the suit was incurably defective and an abuse of process. Before the objection was argued, and before close of pleadings, the plaintiff filed an amended plaint and amended notice of motion substituting Damaris Wanjiru Maina, a living person and administratrix of the deceased's estate, as defendant, without leave of court. The plaintiff explained the original name was a mistake between relatives. Counsel for the defendant opposed admission of the amendments on grounds of timing, service and signing, and pressed for determination of the objection. The court framed two issues: whether the amendments were lawful, and whether the preliminary objection was merited. Holding that the amendment was made before close of pleadings under Order 8 rule 1 and thus needed no leave, and that no party existed at the relevant stage against whom the objection could be sustained, the court found the preliminary objection spent and an exercise in futility to determine. It issued no orders as to costs. Judgment was delivered, dated and signed at Murang'a on 16 April 2018 by J G Kemei, Judge.

Key legal issues

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01

Validity of amendment of pleadings filed without leave

Holding

The amendment substituting Damaris Wanjiru Maina for the deceased Hannah Wanjiru Maina was lawful because it was effected before the close of pleadings under Order 8 rule 1, which requires no leave.

Reasoning

The court noted the suit was initially filed against Hannah Wanjiru Maina, a deceased person, and served on Damaris Wanjiru Maina. Before close of pleadings, the plaintiff amended the plaint and notice of motion to name Damaris as administratrix of the deceased's estate, without leave. Relying on Order 8 rule 1, the court held pleadings had not closed, so no leave was needed, and the amendment lawfully cured the naming error.

p. 2
02

Whether the Preliminary Objection remained competent after the amendment

Holding

The Preliminary Objection was spent; there was no longer a party in the position against whom it was raised, and the plaintiff had abandoned the offending pleadings.

Reasoning

The objection targeted a suit against a deceased person and orders sought against a non-party. After the amendment, the named defendant was the living administratrix. The court reasoned there was no party called Damaris W Maina at the stage the objection was raised, and determining it would be an exercise in futility since the plaintiff had abandoned the pleadings complained of.

p. 2

Legal principles established

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  • Amendment of pleadings before close of pleadings under Order 8 rule 1 does not require leave of the court and may cure an error such as suing a deceased person in their own name, substituting the proper living party.
  • A preliminary objection raised against a party who, after amendment, no longer exists on record in the capacity objected to is spent and need not be determined.

Court orders

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  1. 1.The Preliminary Objection dated 5/2/2018 was found spent and was not determined on its merits
  2. 2.No orders as to costs
Jurisdiction invoked
Original civil jurisdiction; no specific constitutional or statutory provision invoked beyond Order 8 rule 1 of the Civil Procedure Rules on 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, "Francis Kihoro Maina & 2 others v Hannah Wanjiru Maina [2018] KEELC 3386 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3386/eng@2018-04-16

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