BENJAMIN WAFULA BARASA VS ALEX MWANGALA WALELA AND JOEL KHAEMBA WATIBINI AND 1 Others

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1. The application before me for determination is the Notice of Motion dated 26^th May 2023 seeking the following orders;

1.That the Amended plaint dated 22^nd May, 2023 be struck out on the following grounds;

• 1. It discloses no reasonable cause of action, and it does not constitute an amended plaint.
  2. It is scandalous; frivolous and vexatious.
  3. It is merely calculated to prejudice, embarrass and delay the fair trial of the case.
  4. It constitutes an outright and unmitigated abuse of the court process.

1. The application is supported by the affidavit of Saul S. Wasilwa Advocate and grounds apparent on the face of the application. The said application is opposed by Benjamin Barasa Wafula, the plaintiff herein vide a Replying affidavit sworn on 12/6/2023.

APPLICANTS SUMMARY OF FACTS.

1. The Applicant in his supporting affidavit sworn on 29/6/2023 deposed that upon perusal of the court file, he has confirmed that during the year 2011, the plaintiff herein filed an Amended plaint. He stated that the document which ought to be placed before court therefore ought to be called Amended Amended plaint. The applicant further deposed that order 8 Rule 7 of the Civil Procedure Rules sets out succinctly how a pleading should be amended by endorsing the date of the amendment, the date the order allowing the amendment was made or rule pursuant to which the amendment is made. Secondly, all amendments shall be shown by striking out in red ink all deleted words but in a manner to leave them legible, and by underlining in red the added words and finally, Further amendments such as the plaintiff herein seeks to do shall be amended by using different colours other than red.
2. The Applicant further stated that under order 8 Rule 7, the purported Amended Amended plaint ought to replicate all contents of the previously amended plaint, albeit struck out but in a manner to still appear legible. He stated that the purported amendment in the instant case further offends the provisions of order 2 Rule 3 of the Civil Procedure Rules which prescribe that pleadings shall contain and contain only a statement in summary form of material facts by which a party relies, but not the evidence on which those facts are to be proved.
3. He stated that weighed upon the parameters delimiting contents of the pleadings, paragraphs 18-27 of the purported amended plaint which constitute the haranguing corruption allegations against Webuye Senior Principal Magistrate, and which allegations have no bearing whatsoever to the original suit for eviction and recovery of occupational mesne profits from the defendants and that these paragraphs ought to be struck out.
4. The applicant also deposed that paragraphs 28-49 do not constitute an amendment but leading of evidence which offends the provisions of Order 2 Rule 3 of the Civil Procedure Rules. He stated that paragraph 50-56 do not constitute amendments but they are allegations of impropriety against public officials which can or may only be properly ventilated by a formal complaint to be investigated by the Directorate of Criminal Investigations and the Judicial Service Commission.
5. It is further deposed that the averments in paragraphs 57-65 headed case digest and summary are not amendments but matters for making submissions at the end of the trial. He stated that joining of the Counsel appearing for the Defendants without an averment of matters connecting Counsel to any wrongdoing alleged in the plaint is really calculated to embarrass and bring into disrepute the Honour and dignity of this Honourable court. He said that joinder of judicial officers, the County Government of Bungoma and officers of the National Government is equally meant to embarrass and bring into disrepute the system of administration of justice and this impudence should not be condoned.
6. The applicant stated that whereas he is alive to the requirements that no technical objection may be raised to any pleadings on the ground of any want of form, that is only limited to instances where the pleading substantially answer to the requirement that the pleadings are precise and in accordance with the requirements regulations and rules of procedure. In conclusion, the applicant submitted that the rules of procedure are hand maidens of justice and cannot be ignored with impunity and that in the purported Amended Amended plaint, there is no precision in the drafting and there is no order and therefore, the defendant cannot purport to imagine what issues they are required to respond to.

PLAINTIFF/RESPONDENT’S SUMMARY OF FACTS

1. The plaintiff/Respondent filed 62 pages replying affidavit and deposed as follows;

THE SCANDALOUS AMENDED NOTICE OF MOTION;

‘’1). THAT, the Notice of Motion dated the 31^st day of May, 2023; is frivolous, vexatious and scandalous (Biakoko, or Chakalongo, or Kiddy). Refers Order 2 Rule 14 of the civil procedure Act Cap21

2). THAT, the 1^st, 4^th, 6^th, 7^th and 13^th Defendants/Applicants herein, have no locus standi to challenge the plaintiff’s/Respondent’s names from Benjamin Barasa Wafula to Benjamin Wafula Walela.

3). THAT, the cause of actions about same subject matter; due to reducing and changing capacities of parties to the Original and Amended plaint dated 22^nd May, 2023; instead of cancelling the withdrawn parties.

4). THAT, the 1^st, 4^th, 6^th, 7^th and 13^th Defendants/Applicants herein have further offended the plaintiff by reducing the Defence from 18 parties to 4 Defendants through their purported Notice of Motion dated 31^st May, 2023

5). THAT, the 1^st, 4^th, 6^th and 13^th Defendants/Applicants herein; have no locus standi to amend the plaintiff’s case by changing the capacity of the 4^th Defendant to 2^nd Defendant, 6^th Defendant to 3^rd Defendant and 7^th Defendant to 4^th Defendant.

THE UNPROSECUTED AMENDED PLAINT;

6). THAT, the Amended plaint filed by M/S C.K AREBA & CO. ADVOCATES, was not prosecuted and that is why the plaintiff/Respondent sought for leave toamend his pleadings or averments due to the case having been delayed for 13 years.

7). THAT, the unheard plaintiff’s/Respondent’s Original and the M/S C.K AREBA & CO. ADVOCATES’ Amended plaints are superseded by the 22^nd May, 2023 Amended plaint.

THE SUCCESSION CAUSE NO.129 OF 2006;

8). THAT, the delay was due to the Hon. Trial judges staying the prosecutions of these matters, pending determination of succession Cause No. 129 of 2006.

9). THAT, the 4^th, 6^th, 7^th and 8^th Defendants/Applicants herein; delayed the succession cause NO. 129 of 2006 for 8 years, but to date have failed to legalise their claim.

THE CORONA VIRUS 2019 PANDEMIC;

10). THAT, the prosecution of these matters, was equally delayed due to the judiciary lock-down directions to curb the Corona Virus (COVID19) pandemic.

11). THAT, the Environment and land Court at Kakamega didn’t have the virtual facilities, so the main suit prosecutions couldn’t be prosecuted on line; until when the judiciary lock-down directions to curb the Corona Virus (COVID19) pandemic, were lifted.

THE AMENDED PLAINT DATED 22^ND MAY, 2023;

12). THAT, the plaintiff/Respondent herein, applied on 7^th March, 2022 and on 26^th September, 2022; the Trial Judge allowed the amendments by consent of the 1^st, 4^th, 6^th, 7^th and 13^th Defendants herein.

13). THAT, the Amended plaint is necessary for helping this Hon. Trial Court to fully adjudicate about the questions affecting the subject matter; pursuant to Article 50; Clause 4 upto 6 of the Constitution and Order 1; Rule 10(2) of the Civil Procedures Act Cap 21; because after confirmation of the grant and before hearing hereof, parties have discovered many compelling and new evidence to be relied on during the hearing of this Eviction case.

14). THAT, the 1^st, 4^th, 6^th, and 13^th Defendants have violated Order 1; Rule 10(1& 2), Order 8; Rules 1-8 and Order 45; Rules 1-2 of the Civil Procedure Act Cap 21; when falsely averred the Amended plaint to be scandal for delaying a good case.

15). THAT, all parties in this case are bound by law to address their interests or grievances; through the Amended plaint dated the 22^nd day of May, 2023.

16). THAT, the technicalities of counselling and underlining by red or black ink; doesn’t affect the subject matter and reliefs sought, because the plaintiff/Respondent herein prayed and all parties were allowed to amend their entire averments; which must be done pursuant to the plaintiff’s/Respondent’s Amended plaint dated 22^nd May, 2023

17). THAT, the Causes of Actions about same subject matter; between same parties are not damaged by failure to underline preferred, or omission of withdrawn averments.

18). THAT, Order 1; Rule 9, Order 2 Rules 5& 14 and Order 51; Rules 10(2) of the Civil Procedures Act Cap21; provides for the case or Application not to be defeated on want of application technicalities, which doesn’t affect the subject matter.

19). THAT, the 1^st, 4^th, 6^th, 7^th and 13^th Defendant’s/Applicant’s Notice of Motion dated 31^st May 2023; is frivolous, vexatious and scandalous and scandalous; both on matters of law and facts, because it has reduced the sued Defense and changed parties’ capacity from the main case dated the 22^nd day of May, 2023 and therefore affects the subject matter which damages the entire case.

THE CHAMBER SUMMONS FOR ANULMENT AND OR REVOCATION OF THE GRANT;

20). THAT, the 13^th Defendant/Applicant herein violated Article 50; Clause 4 up to 6 of the Constitution, when commenced a Res judicator case by way of counterclaim in terms of the chamber summons dated 13^th April, 2011; for Annulment and or Revocation of Grant, which was proceeded as the plaint from 8^th July, 2014; then withdrawn on 6^th May, 2015 and dismissed on 23^rd May, 2017.

21). THAT, the 13^th Defendant/Applicant herein; has while knowingly and fraudulently; evaded to file the 4^th, 6^th, 7^th and 8^th Defendants’/Applicants’ counterclaim dated 13^th April 2011; which they commenced by way of Chamber summons for Annulment and or Revocation of the Grant.

22). THAT, the 13^th Defendant/Applicant has while knowingly and fraudulently, compromised the 1^st, 4^th, 6^th and 7^th Defendants/Applicants herein; to hide chamber summons dated 13^th April, 2021; consent orders, confirmation and Rulings entered between 6^th May 2016 and 6^th July 2018.

23). THAT, the 13^th Defendant/Applicant herein has knowingly and fraudulently, compromised the 1^st, 4^th, 6^th and 7^th Descendants to hide the lands sale transaction documents forged on 24^th June, 1968; 24^th January 1971; 8^th March, 1971; 9^th December, 1974, 26^th April 1978, 29^th October, 1996 and 17^th May, 2008.

24). THAT, the 13^th Defendant/Applicant herein has while knowingly and fraudulently, compromised the 1^st, 4^th, 6^th and 7^th Descendants to hide the withdrawal documents entered on 2^nd June, 2010; 7^th June, 2010; 15^th July, 2010; 29^th October, 2010 and 3^rd November, 2010.

CONCEALMENT TO COURT OF SOMETHING MATERIAL TO THE CASE;

25). THAT, the 13^th Defendant/Applicant has knowingly and fraudulently compromised then concealed to this Hon. Court about the 1^st, 4^th, 6^th, 7^th, 8^th, 11^th and 13^th Defendants/Applicants herein; are sued before the Appellate jurisdiction as the 56^th up to 60^th, 102 and 125^th Respondents due to hiding, maneuvering documents and forgiving signatures.

26). THAT, the 13^th Defendant/Applicant is well informed through the Registered Land Act NO. 6 of 2012; section 157 (1a-c(i-ii) & d) that; a person who knowingly and fraudulently assists or helps another person to procure land falsely, through written or oral information, is compellable to pay Kshs. 10,000,000/=(Ten million only), or sentenced for 10 years and or both terms applicable.

27). THAT, the 13^th Defendant/Applicant herein, while knowingly and fraudulently, assisted the 1^st, 4^th, 6^th and 7^th Defendants/Applicants to procure L.R NO. NDIVISI/MUCHI/2366 by giving false written information, titled as Grounds of Opposition, Counterclaim, Hearing/Mention Notice for a strange Environment and Land Case NO. 106 of 2010 and Notice of Motion dated 31^st May, 2023

28). THAT, the 13^th Defendant/Applicant is sued vide the 8^th up to 17^th paragraphs of the plaint Amended on 22^nd of May, 2023

29). THAT, the 13^th Defendant/Applicant is adjudged through the 14^th, 15^th, 17^th and 28^th up to 43^rd paragraphs of the Amended plaint dated 22^nd May, 2023.

30). THAT, the 1^st, 4^th, 6^th and 7^th Defendants/Applicants counterclaim under the urge of the 13^th Defendant herein, is Res judicator vide paragraphs 58 and 60 of the Amended plaint dated 22^nd May, 2023.

31). THAT, the 1^st up to 18^th Descendants /Applicants herein, are adjudged through paragraphs 50 up to 56 of the plaint amended on 22^nd May, 2023.

32). THAT, the 1^st up to 11^th Defendants/Applicants herein, are adjudged through paragraphs 34 up to 49 of the plaint amended on 22^nd May, 2023

CAUSES OF ACTION

33). THAT, the subject L.R NO. NDIVISI/MUCHI/2366; is premised on various similar causes of Actions, between same parties as follows;

34). THAT, the first cause of Action, is the stealing of the subject matter L.R NO. NDIVISI/MUCHI/2366; using forged land sale Agreements.

35.). THAT, the second cause of Action, is the trespassing, selling and encroaching on L.R NO. NDIVISI/MUCHI/2366.

36). THAT, the third cause of action is due to the 1^st, 4^th, 6^th and 8^th Defendants herein; trespassing, intermeddling with, and or encroaching on the deceased’s L.R NO. NDIVISI/MUCHI/2366

37). THAT, the fourth cause of action is due to the 1^st, 4^th, 6^th, 7^th, 8^th, 12^th, 13^th, 15^th, and 18^th Defendants/Applicants splitting the plaintiff’s/Respondent’s case into the Chief Magistrate’s civil case 854/2013; High Court ELC NO. 285 of 2013; Senior Principal Magistrate’s Court ELC 33 of 2018 and civil case NO. 132 of 2019

38). THAT, the fifth cause of action is due to the 12^th, 15^th and 16^th Defendants declining to arrign the arrested suspects, then scandalized to dismiss the Webuye Misc. Criminal Application NO. 28 of 2022 on want of no one was arrested.

39). THAT, the sixth cause of action is due to the 13^th and 18^th Defendants changing case number registration to help and enable the 1^st up to 8^th Defendants changing case number registration to help and enable the 1^st up to 8^th Defendants/Applicants procure L.R NO. NDIVISI/MUCHI/2366 falsely.

40). THAT, the seventh cause of action is due to the 12^th, 15^th and 17^th Defendants downing their tools against the protocols of Bungoma County.

41). THAT, the eighth cause of action is when knowingly and fraudulently on 10^th of December 2020; the 12^th and 18^th Defendants herein, upheld and assisted judiciary officers to be hiding court cases files from the National Archives and Trial courts, cheating the judiciary personel who have constitutional mandate Rights to hide court cases and or Documents in favour of compromised litigants and advocates, can only be appealed or reviewed against such rights.

42). THAT, the ninth cause of action is when knowingly and fraudulently on 10^th of December 2020; the 12^th and 18^th Defendants upheld and assisted the judiciary officers to favour unrelated Defendant for procuring my ancestral L.R NO. KIMILILI/KAMUKUYWA/339 falsely; who scandalously denounced the plaintiff’s and his paternal grandfather’s familial, without hearing parties and their witnesses, cheating such offences can only be taken the Appellate, or Reviewal jurisdictions.

43). THAT, the tenth cause of action is when knowingly and fraudulently on 25^th of February, 2021; the 12^th and 18^th Defendants herein, violated Article 159; clauses 1 & 2 (a-c) of the Constitution and referred offences committed by judiciary officers; to be appealed against, or reviewed, without being cased before the High Court.

44). THAT, the eleventh cause of action was on 30^th January, 2020; when the Law Society of Kenya declined to investigate the complaint dated 30^th January 2020, then verbally referred the complainant before the Trial Court, which has locus standi to adjudge the Advocates about the offences committed before the court pursuant to the Advocates Act Cap 16; Sections 55 of 56, prior to Law Society of Kenya’s jurisdiction.

45). THAT, the twelfth cause of action is when the 12^th Defendant declined extracting the orders issued by the Bungoma Superior Environment and Land Court, cheating the Magistrate’s Court has no such jurisdiction.

46). THAT, the thirteenth cause of action is when the plaintiff herein, extracted the order showing it was issued by the Bungoma ELC and given under his hand by the Superior Principal Magistrate’s Court at Webuye; but the 12^th Defendant declined signing the order as issued by the Bungoma Superior Environment and Land Court, cheating the Magistrate’s Court has no jurisdiction.

47). THAT, the fourteenth cause of action was on 28^th February, 2019 when the 12^th Defendant returned the file for the order to be extracted by the 18^th Defendant at Bungoma ELC, but on 1^st March, 2019; the 18^th Defendant returned the said file to the Senior Principal Magistrate’s Court at Webuye, who up to this moment, the 12^th Defendant is compromised by the 1^st up to 17^th Defendants and declined to extract the order as directed by the 18^th Defendant on 1^st March, 2019.

48). THAT, fifteenth cause of action was on 28^th February, 2019 when the 12^th, 14^th and 15^th Defendants have declined to amend the plaint pursuant to the order issued on 25^th September, 2015; with intention to damage the pecuniary value of the plaintiff’s case.

49). THAT, the sixteenth cause of action was on 28^th February, 2019 when the 12^th, 14^th and 15^th Defendants herein; declined serving the 2^nd up to 18^th Defendants of the Webuye ELC NO. 33 of 2018, with intention to damage the pecuniary vale of the plaintiff’s counterclaim case.

RELIEFS SOUGHT;

50). THAT, the plaintiff/Respondent herein prays for trial judge to issue orders for evicting the 1^st up to 8^th Defendants/Applicants herein without further notification.

51). THAT, the Relief sought by the plaintiff/Respondent herein, is payment of Kshs 180,000,000/ due to the 1^st up to 18^th Defendants/Applicants using false written and oral information; to help and assist the 1^st, 4^th, 6^th, 7^th and 8^th Defendants/Applicants herein, to procure L.R NO. NDIVISI/MUCHI/2366 falsely.

52). THAT, the relief sought by the plaintiff/Respondent herein, is for this Hon. Court to issue orders compelling each of the 1^st up to 11 Defendants/Respondents herein, to pay Kshs 10,000,000/=(Kenya shillings Ten million only); being the pecuniary value of the quarter acre they disposed secretly, from L.R NO.NDIVISI/MUCHI/2366

53). THAT, the relief sought by the plaintiff/Respondent herein, is for this Hon. Court to issue orders compelling each of the 13^th and 18^th Defendants/Respondents herein, to pay Kshs10, 000,000/= (Kenya shillings Ten million only); due to assisting and helping the 1^st, 4^th, 6^th and 7^th Defendants herein to procure L.R NO. NDIVISI/MUCHI/2366 falsely; through un-existing Environment and Land Court Case NO. 106 of 2010 and a Res judicator counterclaim dated 23^rd February, 2021

54). THAT, the Relief sought by the plaintiff/Respondent herein, is for this Hon. Court to issue orders compelling each of the 1^st up to 18^th Defendants/Respondents herein, pay for General damages since they forged land transactions on 24^th June, 1968; 24^th January 1971; 8^th March, 1971; 9^th December, 1974, 18^th August, 1975; 13^th August, 1975; 26^th April, 1978, 29^th October, 1996, 17^th May, 2008 and 3^rd October, 2008.

55). THAT, the Costs of the entire process be paid to the plaintiff by the 1^st up to 18^th Defendants herein, since the date of the land sale Agreement entered partially on the 24^th day of June, 1968

SUBSEQUENT PLEADINGS PURSUANT TO THE APPLICATION DATED 31^ST May, 2023;

56). THAT, since the Applicant’s Application dated 7^th March, 2022 prayers were upheld by the trial judge, it pleases this Hon. Court to award the costs of 26^th September, 2022 upon the plaintiff totalling to Kshs 40,000/= (Kenya shillings forty thousand only); pursuant to order 51; Rule 11(1&2) of the Civil Procedure Act Cap 21.

57). THAT, it pleases this Hon. Court to issue orders directing the costs of 3^rd May 2023 to be paid upon the plaintiff herein, due to the 1^st, 4^th, 6^th and 7^th Defendants’ Advocate (13^th Defendant herein), serving a wrong Environment and Land Case NO. 106 of 2010 but declined to serve the 2^nd, 3^rd and 5^th Defendants herein, for the main hearing on the 3^rd day of May, 2023.

58). THAT, the 1^st, 4^th, 6^th, 7^th and 13^th Defendants’/Applicants’ Notice of Motion dated 31^st May, 2023 purported in the capacity of 1^st up to 4^th Appellants thereof; be dismissed with costs payable to the plaintiff herein, before the next date of hearing.

59). THAT, it pleases this Hon. Court to issue orders compelling the 1^st, 2^nd, 3^rd, 5^th and 11^th Defendants to compensate the 4^th, 5^th, and 7^th Defendants herein; in terms of their land sale Agreements hidden on 24^th June, 1968; then forged on 24^th January, 1971; 8^th March, 1971; 9^th December, 1974; 26^th April, 1978; 29^th October, 1996; 17^th May, 2008 and 3^rd October, 2008

60). THAT, it pleases this Hon. Court to issue orders compelling the 4^th Defendant to compensate the 8^th Defendant herein; in terms of the land sale Agreements forged on 24^th June, 1968; 24^th January, 1971; 8^th March, 1971; 9^th December, 1974; 17^th May, 2008 pursuant to the land sale Agreement entered on 3^rd October, 2008 and the 8^th Defendant’s witness statement dated 25^th May, 2011.

61). THAT, it pleases this Hon. Court to issue ex-parte orders, directing the 12^th, 15^th and 18^th Defendants to transfer both Webuye Senior Principal Magistrate’s ELC NO. 30 of 2018 and Civil Case NO. 132 of 2019 to this jurisdiction; due to similar issues about same subject matter L.R NO. NDIVISI/MUCHI/2366, being case between same parties.

62). THAT, it pleases this Hon. Court to issue orders compelling the 1^st up to 18^th Defendants to hire a Government Judiciary vehicle and pay for the transfer of both Webuye Senior Principal Magistrate’s ELC NO. 30 of 2018 and Civil Case NO. 132 of 2019 to this jurisdiction; due to violating sections 5 up to 8 of the Civil Procedure Act Cap 21, when commenced such similar claims between same parties; instead of complying with order 1; Rule 10(1-2) and order 7; Rules 1-12 of the Civil Procedure Act Cap 21, through this earliest Civil case NO.106 of 2010.

63). THAT, I know of my own knowledge, all the deposed herein are true to the best of my information, knowledge, belief and understanding.

LEGAL ANALYSIS AND DECISION

1. I have considered the application dated 26^th May, 2023, the supporting affidavit, the replying affidavit, the pleadings, the proceedings and the relevant law. The Applicant in the application under review is seeking to struck out the Amended plaint dated 22^nd May, 2023 on grounds that it discloses no reasonable cause of action, does not constitute a proper Amended plaint, is scandalous, frivolous, vexatious and merely calculated to prejudice, embarrass and delay the fair trial of the case and that it constitutes an outright and unmitigated abuse of the court process.
2. I have looked at the order issued on 26^th September, 2022 granting the plaintiff leave to Amend the plaint herein. From the pleadings and proceedings on record, this suit was transferred to KAKAMEGA ELC Court for hearing and determination after the then presiding Judge of this Honourable Court HON. Justice B.N Olao recused himself from hearing this case on grounds that the plaintiff had sued him in C.A NO. 92 of 2019(Eldoret). By a Notice of Motion application dated 7/3/2022, the plaintiff herein had sought to be granted leave as well as the defendants to Amend their pleadings.
3. When the said application came up for hearing on 26^th September 2022, the presiding Judge ELC  Kakamega HON. D.O OHUNGO made the following orders/directions;
4. The orders of 2/3/2022 dismissing the suit are hereby set aside.
5. Prayer 3 of the N/M dated 7/3/2022 is granted
6. Costs of the application shall be in the cause
7. This matter was transferred to this Court when Olao J. recused himself on 27/6/2020. The Judge is proceeding on transfer w.e.f end of this month. This matter is hereby transferred back to ELC Bungoma for hearing and determination.
8. Mention on 31/10/2022 before ELC Bungoma for further directions.
9. The 4^th, 5^th, 6^th and 7^th defendants through the firm of BS ADVOCATES are now seeking to struck out the plaint Amended and filed in court on 22/5/2023.
10. Order 2 Rule 15 of the Civil Procedure Rules provide as follows;
11. At any stage of the proceedings the court may order to be struck out or amended any pleading on ground that;
12. It discloses no reasonable cause of action or defence in law; or
13. It is scandalous, frivolous or vexatious; or
14. It may prejudice, embarrass or delay the fair trial of the action; or
15. It is otherwise an abuse of the process of the court,

And may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be….

1. Order 2 Rule 3 provides as follows;
2. Subject to the provisions of this rule and rules 6, 7 and 8, every pleading shall contain, and contain only, a statement in a summary form of the material facts which the party pleading relies for his claim or defence, but not the evidence by which those facts are to be proved, and the statement shall be as brief as the nature of the case admits.
3. Without any prejudice to subrule (i), the effect of any document or the purport of any conversation referred to in the pleading shall, if material, be briefly stated, and the precise words of the document or conversation shall not be stated, except in so far as those words are themselves material.
4. A party need not plead any fact if it is presumed by law to be true or the burden of disproving it lies on the other party, unless the other party has specifically denied it in his pleading.
5. A statement that a thing has been done or that an event has occurred, being a thing or an event the doing or occurrence of which constitutes a condition precedent necessary for the case of a party shall be implied in his pleading.
6. Order 8 Rule 7 CPR cited in the application also provides as follows;
7. Every pleading and other documents amended under this Order shall be endorsed with the date of the amendment and either the date of the order allowing the amendment or, if no order has been made, the number of the rule in pursuance of which the amendment was made.
8. All amendments shall be shown by striking out in red ink all deleted words, but in such a manner as to leave them legible, and by underlining in red ink all added words.
9. Colours other than red shall be used for further amendments to the same documents.
10. I have looked at the Amended Plaint dated and filed in court on 22^nd May, 2022. From the pleadings on record, the plaintiff instituted this suit against the initial seven defendants vide a plaint dated 26^th October, 2010. The said 7^th defendants (1^st, 2^nd, 3^rd, 4^th, 6^th and 7^th) defendants instructed the firm of M/S BULIMO & CO. ADVOCATES who entered appearance on 30/11/2010 but subsequently filed defence only on behalf of the 1^st, 2^nd, 3^rd, and 5^th defendants on 6/12/2010. By a Notice of Motion application dated 22/2/2011, the plaintiff through the firm of C.K AREBA & CO. ADVOCATES sought leave to amend the plaint. The plaintiff annexed a draft amended plaint. That application was fixed for hearing on 19/3/2012. However, the said application was not listed for hearing on 19/3/2012 until the matter came up for notice to show cause why this appeal should not be dismissed for want of prosecution under Order 17 Rule 2 on 3^rd November, 2016. On the said date, the court was informed that there was a succession cause before the High where the suit property land parcel NO. NDIVISI/MUCHI/2366 was among the properties for distribution. This court was satisfied that sufficient cause had been shown why the suit should not be dismissed for want of prosecution and directed the matter to be mentioned after the Succession cause was heard and determined.
11. Looking at the Amended plaint by the plaintiff, the same indicates as dated and not Amended on 22^nd May 2022 as required under the Rules. A cursory look at the said Amended plaint shows that it contains 43 paragraphs compared with the original plaint dated 26^th October, 2010. A simple arithmetic shows that 33 paragraphs have been added to the Amended plaint. However, there is no endorsement with a red ink of the said amendments as required under the rules. The only endorsement with a red ink are the names of the 11 additional defendants.
12. From the Amended plaint, the plaintiff/applicant has devised a strange mode of pleading unknown under the Civil Procedure Rules or the common law jurisdictions. Paragraphs 28-49 of the amended plaint contains leading evidence which offends the provisions of Order 2 Rule 3 CPR.
13. Paragraphs 18-27 of the amended plaint constitute some haranguing corruption allegations against Webuye Senior Principal Magistrate. Those allegations have no bearing whatsoever to the original suit for eviction and recovery of occupational mesne profits from the defendants.
14. Paragraphs 50-56 are allegations of impropriety against public officers who, in my view, would have properly been ventilated by a formal complaint to be investigated through the Directorate of criminal investigations and the Judicial Service Commission.
15. It is to be noted that averments contained in paragraphs 57-65 of the purported amended plaint headed ‘Case Digest and Summary’ are not amendments but matters for consideration during submissions at the end of a trial.
16. Suffice to add that the joining of a judicial officer or other officers from the County Government or the National Government without any averment of matters connecting them to any wrong doing alleged in the plaint is intended to embarrass and bring into disrepute the office and dignity of those officers and the entire administration of justice which this Honourable Court will not countenance.
17. This Honourable Court is mindful of the provisions of Sections 1A, 1B, 3A, of the Civil Procedure Act Cap21 as well as Article 159(2)(d) of the Constitution of Kenya 2010 on Judicial Authority given to the courts to do justice without undue regard to procedural technicalities. However, that applies only where pleadings answer precisely to specific aspects raised and in accordance with the requirements of rules of procedure and regulations. The power to strike out any pleading is a discretionary jurisdiction given to the courts to be exercised having regard to the quality and circumstances relating to the offending pleading.
18. The upshot of my finding is that the Notice of Motion application dated 26^th May 2023 is merited and allowed as prayed. Consequently, the Amended plaint dated 22^nd May 2023 be and is hereby struck out with costs

READ, DATED, DELIVERED and SIGNED in the open court/Virtually at Bungoma this 19^th December, 2023.

HON. E.C CHERONO

ELC JUDGE

In the presence of;

1. Plaintiff in person
2. Mr. Nabwami H/B Wasilwa for defendants
3. Florence C/A

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