The Defendant Applicant brought the instant application to strike out the Amended Writ of summons and statement of claim dated 19th December 2018 for non-compliance of the order of the Court.
Counsel for the Defendant/Applicant moving the motion submitted that the proposed amended Writ of Summons and Statement of Claim as filed by the Plaintiff/Respondent has at paragraph 6 the acreage of the said proposed land to be 0.610 acres or 0.247 hectares but at paragraph 4 of Exhibit HK3 that is the amended Writ of Summons the acreage has now changed from 0.610 acres to 0.43 acres.
That the amended writ of summons filed by the Plaintiff/Respondent did not conform with the proposed amended Writ of Summons as granted by the Court and for that matter the amended writ of summons and statement of claim as filed by the Plaintiff /Respondent be struck out.
Counsel for the Plaintiff/Respondent in her response stated that if one looks at the amended writ filed by the Plaintiff dated 13th May 2015 specifically relief (a) and paragraph 4 of the amended statement of claim and compare that to the amendment filed dated 19th December 2018, one will realize that paragraph 4 of the amendment filed on the 19th December 2018 is the same as the one filed on the 13th May 2015. And that even though in the proposed amendment though the size of the land clearly states that it is 0.610 acres or 0.247 hectares the new amendment on the 19th December 2018 repeats the size of the land in the old amendment of the 13th May 2015.
Counsel further submitted it just appeared that what has been done is an error because it does not make sense that the relief (a) will quote the size of the land as 0.610 acres or 0.247 hectares yet paragraph 4 of the amended statement of claim will give a 0.43 acres, so obviously something is not right and a complete error.
Order 16 rule 5 (5) of the High Court Civil Procedure rules (2004) C.I 47 states:
“An amendment may be allowed under sub rule (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.”
I have carefully read the affidavit filed in support of the application and that opposing same, I also listened to the submission made by both counsels and hold the view that, the acreage
