Hamisi Omar v EA Cargo Handling Services Ltd

High Court, at Mombasa

November 15, 1985

Aragon J

Civil Suit No 784 of 1976

Civil Practice and Procedure - amendment of - application for – factors to be considered in deciding whether to allow amendment or not – when application to amend is made very late in the proceedings – where amendment will occasion injustice.

The applicant applied for leave to amend the plaint. The respondent strongly resisted the application on the grounds that the amendment would seriously prejudice the conduct of his defence in view of the inordinate lapse of time (15 years).

Held:

1. Amendments may be allowed at any time before judgment.
2. Amendment of pleadings should generally be allowed provided the damage which may arise as a result of the amendment can be cured by way of costs. However in this case no amount of costs can compensate the defendant for the damages the amendment will occasion.
3. The fact that the memory of witnesses is affected by the lapse of time and the fact that many witnesses of the defence have died ought to be taken into account to support the disallowment of this late amendment.
4. An application to amend cannot be allowed in a case such as this after a long laps of time as it would be unjust.

Application refused.

Cases

No cases referred to.

Statutes

Limitation of Actions Act (cap 22)

Advocates

Messrs Mburu, Serenje & Co for Plaintiff

Negligence – incidence of in road traffic accidents – vicarious liability– – driver driving in he course of employment – special damage s- evidence of must be produced.