Jane Wangari Muraya & 2 others v Kenya Commercial Bank Ltd & another [2019] KEELC 1112 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether leave to amend the plaint should be granted
Leave to amend was granted as no prejudice would be caused to the remaining defendant, who would retain an opportunity to amend its defence.
The court applied the settled principle that amendments to pleadings are generally allowed freely provided no prejudice results to the other side. Here the bank, as sole remaining defendant, could still amend its defence and plead matters in its defence. The removal of the 2nd defendant was a matter within the plaintiffs' discretion as masters of their own suit, and the court would not stand in their way where they perceived no cause of action against that party.
Whether the plaintiffs may withdraw the suit against the 2nd defendant
The choice to remove the 2nd defendant was the plaintiffs' own and the court would not prevent it.
The court regarded the plaintiffs as entitled to elect against whom they pursue their claims. Having reflected that the proper remedy for a chargor aggrieved by an auction is damages against the seller, they saw no cause of action against the auction purchaser. The court acceded to that election, resulting in the 2nd defendant exiting the proceedings with the costs of the suit.
Costs of the application and of the suit as against the 2nd defendant
Costs of the suit were conceded to the 2nd defendant, but no costs were awarded for the application itself.
The plaintiffs conceded the 2nd defendant's costs of the suit, which the court accepted. On the application, the court reasoned that the 2nd defendant could only be removed from the proceedings through this application, so it was not entitled to costs of that application. The application therefore carried no costs order.
Legal principles established
#- The remedy of a chargor aggrieved by an auction sale lies in damages against the seller (chargee).
- The court is generally liberal in allowing amendment of pleadings so long as no prejudice is caused to the other parties.
Court orders
#- 1.Leave granted to amend the plaint as per the annexed further amended plaint
- 2.The 2nd defendant, Shallom Homes Limited, ceases to be a party to the proceedings
- 3.Costs of the withdrawn suit awarded to the 2nd defendant
- 4.No orders as to costs in respect of the application
- Jurisdiction invoked
- Inherent powers of the court to allow amendment of pleadings (Civil Procedure Act and Rules invoked generally; no specific article quoted in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nancy Eliza Muthoni Gikonyo v Housing Finance Company of Kenya Limited, Rupinder Singh Sehmi, Lifeline Traders Limited & Standard Chartered Bank (Interested Party)[2019] KEHC 3746 (KLR)30 Sept 2019applied
Cite this brief
#Cite this brief
Caselaw, "Jane Wangari Muraya & 2 others v Kenya Commercial Bank Ltd & another [2019] KEELC 1112 (KLR)", Case Analysis (2019). Not stated in judgment (suit filed 20 May 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1112/eng@2019-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.