Automated Summary
Key Facts
The Kwale County Council sought to amend its defense in Civil Case No. 711 of 1993, filed on 17 December 2011 (the same day the New Civil Procedure Rules came into effect). The court allowed the amendment despite the plaintiff's opposition, which cited procedural issues under the old rules and a 46-day delay beyond the 21-day deadline. The judge ruled the delay was not substantial or prejudicial and ordered the defendant to pay costs.
Issues
- The court addressed the timeliness of the amendment application, noting it was filed 46 days after the 21-day deadline set by the court. The plaintiff opposed the application on this ground, but the judge allowed it as the delay was not substantial or prejudicial and could be compensated in costs.
- The court considered whether the 1st Defendant's application to amend its defence was valid under the previous Civil Procedure Rules after the Revised Rules came into force on 17.12.2011. The plaintiff argued the application was incompetent as the old rules no longer applied. The judge ruled the applicant was entitled to rely on the previous rules as the application was prepared and dated before the new rules took effect.
Holdings
- The court orders the 1st Defendant to pay the costs of the application as a result of the delays in filing, which were not substantial or prejudicial but compensable in costs.
- The application is allowed in terms of prayers 1 and 2, permitting the 1st Defendant to amend its Defence to include all material facts. The amendment is deemed necessary for a wholesome determination of the case.
Remedies
- The 1st Defendant is ordered to pay the costs of the application, as the delay in filing (after 46 days) is considered not substantial but compensable in costs.
- The court allows the application for the 1st Defendant to amend its Defence, enabling a comprehensive determination of the case.
Legal Principles
The court allowed the amendment of pleadings under the Civil Procedure Act, noting that while the application was filed outside the directed timeframe (46 days instead of 21), the delay was not substantial or prejudicial and could be compensated in costs. The judge emphasized that the 1st Defendant would bear the costs of the application due to the delay.
Cited Statute
- Revised Civil Procedure Rules
- Old Civil Procedure Rules
Judge Name
M.K. Ibrahim
Passage Text
- Application was not filed within 21 days but after 46 days. While this is out of the period directed by the court for expedition, I am not inclined to reject the filing of the application. The delay is not substantial or prejudicial. It can be compensated in costs.
- I therefore, hold that applying the principles in section 1 A and 1 B of the Civil Procedure Act, having filed the application on 17.12.2011, the same day the New Act came into force, I think that the Applicant was entitled to rely on the previous Rules having prepared and dated the application before 17.12.2010.
- I hereby allow the application in terms of prayers 1 and 2. The 1st Defendant shall pay the costs of the application due to the delays resulting.