AMENDMENT OF PLEADINGS(civil procedure in kenya)


Rules relating to amendments of pleadings in the context of the principle that one is bound by their own pleadings. If one is going to be bound by their pleadings, then they should be allowed to amend them whenever necessity arises and subject to the rules relating to the amendments.

 

  1. The object of amendment is to ensure that litigation between parties is conducted not on a false hypothesis of facts but on the basis of the true state of things; This principle originated in the case of Baker V. Medway Ltd.

One of the parties wanted to amend and the issues that came before the court was whether or not to allow the amendment. The court after considering the facts of the case said that the proposed amendment raised a vital point and unless it was adjudicated upon, the real matter in issue between the parties would not be decided. The court went on to say that if the amendment was not allowed the case would proceed on an assumed state of facts which would be completely at variance with the remedies that they were seeking and the court allowed the amendments for that purpose.

 

  1. The Law relating to amendments is intended to make effective the function of the court. The court becomes effective by determining cases depending on the true substantive merits of the case i.e. amendments allow the court to have regard for substance than force and the parties to free themselves from the technicalities of procedure.

 

  1. The Rule of Amendments also assists parties when new information comes to light i.e. if you hire a new lawyer. A new lawyer might have a new strategy and a new legal theory.

 

  1. Amendments also allow the court to deal with the real issues in controversy between the parties. E.g. Cropper V. Smith the court said ‘I think that it is a well established principal that the object of the courts is to decide the rights of the parties and not to punish them for mistakes which they make in the conduct of their case. The courts do not exist for the sake of discipline but for the sake of deciding matters in controversy. I do not regard such amendment as a favour or of grace. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done

    without injustice, as anything else in the case is a matter of right.’

 

The rules allow for correction so that injustice is not occasioned.

 

RULES IN AMENDMENTS AS SET OUT IN THE CIVIL PROCEDURE RULES Order VI (a)

 

Under Order VI (a) many amendments may be made without the leave of the court. You are allowed to make amendments of your pleadings once before the pleadings are closed. Pleadings are closed 14 days after the last pleadings have been served. If pleadings have closed you must seek the leave of the court to amend. There are occasions when you must seek the leave of the court to amend

 

(a) Where the amendment consists of addition, omission or substitution

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of a party;

(b) Where the amendment consists of alteration of the capacity in which a party sues or is sued;

(c) Where the amendment constitutes addition or substitution of a new course of action.

 

THE PROCEDURE FOR APPLYING FOR LEAVE

 

Application of leave to amend is made by way of Chamber Summons and in most cases you can make an oral application in court but it is always safer to follow the oral application with a written one. Whenever the court grants you leave to amend, it will give you a time frame i.e. if the court tells you you should amend your pleadings in 14 days, if you don’t do so, that order to amend the leave expires. The court has the inherent power to extend that time.

 

POWER OF COURT TO GRANT LEAVE TO AMEND

 

Rule 3 of Order VI (a)

 

The court may at any stage of any proceedings at such manner as it may direct allow a party to amend. You can amend your pleadings any time before judgment. It is even possible to ask to amend pleadings at the Court of Appeal but this is only done under special cases. The general rule of practice is that the court allows late amendments very sparingly. Always seek to amend your pleadings as soon as is practicable. Whenever you apply for leave to amend the court will take into account the time within which you have brought the amendment, the court will want to know why you have for instance applied for an amendment very late in the course of the trial. The court will also look to see that the amendment is brought in good faith.

 

GUIDELINES THAT THE COURTS FOLLOW

  1. Good faith – the court will not grant leave to amend if it is not sought in good faith; The court will be looking to see that the amendment has arisen out of an honest mistake or bona fide omission;
  2. The application should be prompt and within reasonable time; if the court feels that you have waited so long to make the necessary application, they will deny it when applied for Clark V. Wray;
  3. If leave to amend is granted just before the trial, then the court should grant an adjournment.

 

Associated Leisure Limited V. Associated Newspapers Ltd.

 

In this case the court allowed amendments to allow one of the parties to raise a plea of justification in a defamation suit but because the amendment had to do with somebody bringing in a new defence the court had to allow it.

 

  1. The exact amendment should be formulated and stated in writing at the time the amendment is requested. If you make an oral application to amend, then you should be able to formulate it even if not in the exact words as the court will seek to know the effect of the amendment on the matter.

 

  1. Amendments should be allowed where the claim is at variance with the evidence at trial; The time within which a person draws up the plaint and the time at which the prepare for the trial there is a big difference and sometimes witness say things at the time of the trial that do not reflect the evidence.

 

  1. You may appeal against the decision of the lower court to reject an amendment.

 

  1. The amendment should not be allowed to occasion injustice. It is not injustice if it is capable of being compensated by costs. Croper V. Smith I have found in my experience that there is one panacea that heals every soul in other words if the injustice is capable of being compensated ‘I have much to do in chambers with applications to amend … my practice have always been to give leave to amend. The courts always give reasons when they deny leave to amend so that the appellate court can decide on whether the lower court was justified in denying the amendments.

 

DRAWING AMENDMENTS:

 

All amendments will be shown by striking out in red ink but it must always remain legible. The court must be able to see what was there previously and the new words must be underlined. Petition of Andrew V. Winifred.

The plaint will be headed as AMENDED PLAINT: A petition is also a pleading. The 1st date of the pleading must be indicated and then struck out with the words amended and the new date given. In the first petition of Andrew, he did not set out the particulars yet the law requires that one must give particulars in the plaint. Andrew made an application to amend the petition to include the particulars.

 

OTHER WAYS OF APPROACHING THE COURT

 

  1. Plaint;
  2. Originating Summons

 

ORIGINATING SUMMONS

 

An application to the court by way of O.S

 

The most common way of approaching the court is by way of plaint. The Originating Summons method is less common and is only used where the Civil Procedure Rules provide for it or some other statutes especially permits that method of approaching the court. It is a shortened version of the Plaint. The method of O.S. is intended for simpler, shorter and speedier process. Usually when you approach the court of O.S. there are no witnesses and evidence is by way of Affidavit. The question for decision by the court is raised directly in the Summons and the Evidence is raised in the Affidavit. The issues are raised in a concise manner but with sufficient particulars to enable the court identify the issues and the course of action. The remedy or relief sought is also stated clearly therein. Order XXXVI Rule 1 and 2 example THE ESTATE OF JOHN IN THE MATTER OF LETTERS OF ADMINISTRATION INTESTATE

It is used in cases related with agreements for sale or purchase of immoveable property Order XXXVI Rule 3 but only in cases where the existence of the Agreement or Contract is not in dispute and also where the validity is not in dispute.

 

Order XXXVI Rule 3 (a) – application by way of Originating Summons. – must read and remember

 

Order XXXVI Rule 3 (b) – has to do with Caveats approach the court by way of Chamber Summons if there is a pending suit in court.

 

Anything to do with the LGA should be by O.S where there is a pending suit go with the C.S.

 

Rule 3 (c) Application for extension of time under the rules of Limitations Act will go by way of O.S.

 

Rule 3 (d) Application for Land ownership by virtue of adverse possession is made by way of O.S.

 

When you apply for a file to be reconstructed it is also through O.S.

 

INTER PLEADER PROCEEDINGS:

 

One makes an application for inter pleader proceedings by way of Originating Summons.

 

The Applicant for interpleader proceedings must be a neutral party with no claim or interest whatsoever, to the subject matter. They must be making the application, for the sole purpose of protecting themselves from damages as a result of their action in relation to either of the two claimants.

 

The Applicant must not be in collusion with either of the parties and the claimant must be willing and ready to deal with the subject matter in whatever manner the court directs.

 

The Application is made by way of O.S.

 

We cite the enabling section of the law in every O.S. and C.S because the court has to straight away know that it is allowed by the statutes.

 

Order XXXIII sub rule 2

 

NOTICE OF MOTION:

 

A Notice of Motion must include a concise statement of the nature of the claim or the relief or remedy required. Examples.

 

  1. Application for orders for judgment on admission;
  2. Application of Summary Judgment;
  3. Application of Stay of Proceedings;
  4. Application for lifting of an injunction, variation or discharge;
  5. Application for Release Order e.g. Harbeus Corpus Order.

 

All these Applications can be made ex parte although the court is usually reluctant to issue ex parte orders. You are expected to serve the other party with the Notice of Motion.

 

Format of Notice of Motion is in Appendix ‘A’ No. 3

 

CHAMBER SUMMONS:

 

Application by way of Chamber Summons are used when seeking orders within a pending suit. The Application must always be brought and sought under a specific rule. Chamber Summons were historically heard in chambers thus the name Chamber Summons.

 

Look at the general rules relating to Notice of Motion and Chamber Summons.

 

These applications are normally requested for certain orders and the courts will not usually grant ex parte orders unless it has heard both sides. Service is of the essence.

 

Rule No. 2 – if it is an urgent matter and irreparable harm will be occasioned, the court can grant the Order Ex Parte after hearing one side. An ex parte order is only granted upon the undertaking by that party that they shall file the substantive suit and/or serve the other side within a period specified by the Court.

 

Rule 3.

 

Every summons shall state in general terms the grounds of the Application usually supported by evidence in an affidavit.

 

Rule 4.

Application is heard in Chambers and may be transferred to open court or vice versa as the judge may deem convenient.

 

Rule 5.

In the case where an applicant is being heard in chambers the public shall be allowed to be present.

 

Rule 6

All Applications shall bear the following words.

 

Rule 7

Where the Application has been made, the Respondent should file and serve the Applicant with an Affidavit and a statement of the grounds upon which he will oppose the application.

 

WRITTEN SUBMISSIONS

 

If you apply by way of Chamber Summons or Notice of Motion accompanied by an Affidavit, evidence of service, response from the other side (grounds upon which they object and the Supporting Affidavit and the Evidence that they have served you with it. Written submissions that the Applicant will make in court and the Respondents submission.

 

 

NOTICE OF MOTION:

 

Prayer to lift an injunction

Set out enabling statutes

 

Chamber Summons are used when there is a pending suit.

Chamber Summons

Notice of Motion

Petition.