Jotham Andanje Andai v Charles Eliuba Okuta

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA CIVIL CASE NO. 126 OF 2000 JOTHAM ANDANJE ANDAI...................................................................PLAINTIFF/APPLICANT VERSUS CHARLES ELIUBA OKUTA............................................................DEFENDANT/RESPONDENT RULING 1. The Application dated 21.4.2010 seeks orders to amend the Plaint and it is premised on Order 6A Rule 3 of the Civil Procedure Rules. The only ground in support and which is replicated in the short Supporting Affidavit sworn on 21.4.2010 by the Plaintiff/Applicant is that “it is important ………..to include a prayer for eviction which is not pleaded in [the] original Plaint”. 2. In a brief and concise Replying Affidavit sworn on 28.6.2010, the Defendant/Respondent, Charles Eliuba Okute, depones that the Application is defective, is devoid of merit and was brought late (after 9 years) and should be dismissed with costs. 3. Is there merit in the Application? In Standard Chartered Bank [K] Ltd. vs Malindi Engineering Works Ltd. & 4 others – Msa HCCC 22/93, Wambilianga, J. quoted with approval the decision of Brett M. R. in Clarapede vs Commercial Union Association [1883] 32 Q.R. 262 where the learned judge stated as follows; “However negligent or careless may have been the first commission, and however late the proposed amendment, the amendment should be allowed if it can be done without prejudice to the other side. There is no injustice if the other side can be compensated by costs.” 4. He then added; “the object of the court is to decide the rights of parties and not to punish them for the mistakes they make in the conduct of their cases.” 5. I wholly agree and in the matter before me, the Plaintiff/Applicant has made the point in the Plaint filed on 10.7.2000 that he is the registered proprietor of land parcel No. Butsotso/Ingotse/1891 and that

page 1 of 2