' Introduction
1. Before the court for determination are two applications. The first one is dated 4/10/2023 and was filed by the defendants, while the second one is dated 19/10/2023 and was filed by the plaintiff.
2. The first application, the defendants’, is a notice of motion application filed pursuant to order 2 rule 13 and 15 (1)(a)(b)(c)(d); order 51 rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act seeking orders that the amended plaint dated 26/9/2023 and filed on 27/9/2023 be struck out and the suit against the defendants be dismissed with costs.
3. The application was supported by the affidavit of Mburu Njoroge, a director of the defendants, who deponed that pleadings closed on 28/7/2023 when the defendants served their statement of defence dated 14/7/2023 upon the plaintiff. He stated that the plaintiff did not file any reply to the defence and that the amended plaint was filed irregularly, out of time, and without leave of court.
4. It was contended that the amended plaint was incompetent, frivolous, scandalous and vexatious, amounted to an abuse of the court process, and should therefore be struck out in the interests of justice.
5. The plaintiff, through the replying affidavit of Von Kemedi, a director, opposed the defendants’ application. He deponed that the plaintiff instituted the suit because the defendants were indebted to it in substantial sums. He stated that during a mention before the deputy registrar on 27/7/2023, counsel for the plaintiff sought leave to amend the plaint and enjoin a co-defendant, but the deputy registrar indicated that no leave was necessary as the plaintiff was still within time.
6. The matter was thereafter scheduled for further case management on 28/9/2023, where the court noted the amended plaint dated 26/9/2023, granted directions for filing amended defenses, and ordered service upon the proposed co-defendant.
7. He explained that the defendants’ contention that pleadings closed on 28/7/2023 was a result of misapprehension of timelines, a mistake that should not be visited upon the plaintiff. He argued that the amendment was necessary to enjoin a vital party, Daniel Maina, whose testimony was material. He maintained that the case involved fraud and large sums of money, and should therefore be heard on its merits rather than dismissed on a technicality.
8. The plaintiff contended that striking out pleadings was a draconian measure to be applied sparingly, and the delay and irregularity were neither inordinate nor fatal, and could be cured by regularisation under Article 159 of the Constitution and Sections 1A, 1B, 3 and 3B of the Civil Procedure Act. He urged that no prejudice would be suffered by the defendants if the matter proceeded to trial and prayed that the defendants’ application be dismissed in the interests of substantive justice.
The second (plaintiff’s) application.
9. The plaintiff filed an application seeking leave to amend its plaint and enjoin Daniel Maina as a co-defendant. In the alternative, it prayed for extension of time to amend pleadings by sixty days and that the amended plaint dated 26/9/2023 be deemed duly filed.
10. The application was grounded on the fact that during a case management conference on 27/7/2023, the deputy registrar informed the plaintiff that it was within time to amend its pleadings without leave. Acting on this, the plaintiff filed the amended plaint, which was noted by the court on 28/9/2023 when directions were issued for filing amended defenses and serving the proposed co-defendant.
11. The plaintiff stated that on 16/10/2023, the defendants filed an application seeking to strike out the amended plaint on grounds that it was filed out of time and without leave. The plaintiff attributed this to a misapprehension of timelines following the registrar’s directions. It contended that the error should not be visited upon it, and that striking out pleadings is a draconian measure only to be applied in the clearest of cases.
12. It argued that the amendment was necessary to enjoin Daniel Maina, who was the contact person between the parties and a key witness, and that the case raised serious claims of fraud and indebtedness which ought to be heard on the merits.
13. The defendants, through the replying affidavit of Mburu Njoroge, a director, opposed the plaintiff’s application dated 19/10/2023. He deponed that pleadings closed on 28/7/2023 when the defendants served their statement of defence dated 14/7/2023, to which the plaintiff did not file a reply. He stated that although the matter came up for case management on 27/7/2023, the plaintiff only filed and served an amended plaint on 27/9/2023.
14. He contended that the amended plaint dated 26/9/2023 was irregular and incompetent, having been filed after the close of pleadings, contrary to order 2 rule 13 of the Civil Procedure Rules. He maintained that the amended plaint was scandalous, frivolous and vexatious, and urged that it be struck out.
Analysis and determination
15. The plaintiff filed submissions dated 11/6/2024, while the defendants filed submissions dated 22/4/2024. I have considered the same together with the pleadings on record. The central issue for determination is whether the court should allow the amended plaint dated 26/09/2023, which was filed out of time.
16. Order 2, Rule 13 of the Civil Procedure Rules provides:
“The pleadings in a suit shall be closed fourteen days after service of the reply or defence to counterclaim, or, if neither is served, fourteen days after service of the defence, notwithstanding that any order or request for particulars has been made but not complied with.”
17. In this case, the statement of defence was served upon the plaintiff on 14/7/2023. This meant that 14 days after the aforementioned date, on 28/7/2023, the pleadings in this matter closed.
18. The plaintiff amended and filed its plaint on 27/09/2023, nearly two months after the close of pleadings, and without seeking leave of the court. I therefore agree with the defendants’ submissions that the amended plaint as filed was irregular.
19. However, the plaintiff subsequently filed an application dated 19/10/2023 seeking leave to amend the plaint and enjoin Daniel Maina as a co-defendant.
20. Order 8 Rule 3(1) and (2) of the Civil Procedure Rules empowers the court to allow amendment of pleadings at any stage of the proceedings on such terms as may be just. It further provides that leave may be granted even after the expiry of the limitation period, if the court considers it just to do so. The provision states as follows: -
“(1) Subject to order 1, Rules 9 and 10, Order 24, Rules 3,4,,5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.
(2) Where an application to the court for leave to make an amendment such as is mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just so to do.”
21. Further Order 8, Rule 5 of the Civil Procedure Rules gives the court the general power of amendment in the following terms: -
“ (1) For the purpose of determining the real question in controversy between the parties, or of correcting any defects or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.”
22. The Court of Appeal in Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral and Boundaries Commission & others (2013) eKLR, emphasized that procedural infractions which occasion no prejudice ought not to invalidate proceedings. Justice, it held, must not be sacrificed on the altar of strict procedural technicalities. The Court stated that:
“It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardships and unfairness.”
23. Guided by the foregoing provisions and authority, I note that the plaintiff seeks to amend its plaint for the purpose of introducing a new defendant, which it contends is necessary for a full and effective adjudication of the issues in controversy.
24. While there was a delay of about two months in filing the amended plaint, I am persuaded that the proposed amendment raises a substantive and legitimate issue. The introduction of a new defendant will aid in resolving the real questions before the court.
25. I find that no prejudice will be suffered by the defendants if the amendment is allowed. They will have the corresponding right to amend their defence to respond to the new issues, and any inconvenience caused by the delay can be compensated by an award of costs.
26. Accordingly, the court makes the following orders:
i. The application dated 4/10/2023 is hereby dismissed with no order as to costs.
ii. The application dated 19/10/2023 is allowed in the following terms:-
a) The plaintiff is granted leave to amend its plaint.
b) Daniel Maina is hereby enjoined as a co-defendant in these proceedings.
c) The amended plaint dated 26/09/2023 is deemed as duly filed and served upon payment of the requisite fees.
d) The defendants, including the newly enjoined defendant, shall file and serve their respective amended defenses within fourteen (14) days of service of the amended plaint.
27. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
25TH SEPTEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Njanje..………….…..... for the Plaintiff
Tuwei h/b for Karimi.……..Defendant
'
1. Before the court for determination are two applications. The first one is dated 4/10/2023 and was filed by the defendants, while the second one is dated 19/10/2023 and was filed by the plaintiff.
2. The first application, the defendants’, is a notice of motion application filed pursuant to order 2 rule 13 and 15 (1)(a)(b)(c)(d); order 51 rule 1 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act seeking orders that the amended plaint dated 26/9/2023 and filed on 27/9/2023 be struck out and the suit against the defendants be dismissed with costs.
3. The application was supported by the affidavit of Mburu Njoroge, a director of the defendants, who deponed that pleadings closed on 28/7/2023 when the defendants served their statement of defence dated 14/7/2023 upon the plaintiff. He stated that the plaintiff did not file any reply to the defence and that the amended plaint was filed irregularly, out of time, and without leave of court.
4. It was contended that the amended plaint was incompetent, frivolous, scandalous and vexatious, amounted to an abuse of the court process, and should therefore be struck out in the interests of justice.
5. The plaintiff, through the replying affidavit of Von Kemedi, a director, opposed the defendants’ application. He deponed that the plaintiff instituted the suit because the defendants were indebted to it in substantial sums. He stated that during a mention before the deputy registrar on 27/7/2023, counsel for the plaintiff sought leave to amend the plaint and enjoin a co-defendant, but the deputy registrar indicated that no leave was necessary as the plaintiff was still within time.
6. The matter was thereafter scheduled for further case management on 28/9/2023, where the court noted the amended plaint dated 26/9/2023, granted directions for filing amended defenses, and ordered service upon the proposed co-defendant.
7. He explained that the defendants’ contention that pleadings closed on 28/7/2023 was a result of misapprehension of timelines, a mistake that should not be visited upon the plaintiff. He argued that the amendment was necessary to enjoin a vital party, Daniel Maina, whose testimony was material. He maintained that the case involved fraud and large sums of money, and should therefore be heard on its merits rather than dismissed on a technicality.
8. The plaintiff contended that striking out pleadings was a draconian measure to be applied sparingly, and the delay and irregularity were neither inordinate nor fatal, and could be cured by regularisation under Article 159 of the Constitution and Sections 1A, 1B, 3 and 3B of the Civil Procedure Act. He urged that no prejudice would be suffered by the defendants if the matter proceeded to trial and prayed that the defendants’ application be dismissed in the interests of substantive justice.
The second (plaintiff’s) application.
9. The plaintiff filed an application seeking leave to amend its plaint and enjoin Daniel Maina as a co-defendant. In the alternative, it prayed for extension of time to amend pleadings by sixty days and that the amended plaint dated 26/9/2023 be deemed duly filed.
10. The application was grounded on the fact that during a case management conference on 27/7/2023, the deputy registrar informed the plaintiff that it was within time to amend its pleadings without leave. Acting on this, the plaintiff filed the amended plaint, which was noted by the court on 28/9/2023 when directions were issued for filing amended defenses and serving the proposed co-defendant.
11. The plaintiff stated that on 16/10/2023, the defendants filed an application seeking to strike out the amended plaint on grounds that it was filed out of time and without leave. The plaintiff attributed this to a misapprehension of timelines following the registrar’s directions. It contended that the error should not be visited upon it, and that striking out pleadings is a draconian measure only to be applied in the clearest of cases.
12. It argued that the amendment was necessary to enjoin Daniel Maina, who was the contact person between the parties and a key witness, and that the case raised serious claims of fraud and indebtedness which ought to be heard on the merits.
13. The defendants, through the replying affidavit of Mburu Njoroge, a director, opposed the plaintiff’s application dated 19/10/2023. He deponed that pleadings closed on 28/7/2023 when the defendants served their statement of defence dated 14/7/2023, to which the plaintiff did not file a reply. He stated that although the matter came up for case management on 27/7/2023, the plaintiff only filed and served an amended plaint on 27/9/2023.
14. He contended that the amended plaint dated 26/9/2023 was irregular and incompetent, having been filed after the close of pleadings, contrary to order 2 rule 13 of the Civil Procedure Rules. He maintained that the amended plaint was scandalous, frivolous and vexatious, and urged that it be struck out.
Analysis and determination
15. The plaintiff filed submissions dated 11/6/2024, while the defendants filed submissions dated 22/4/2024. I have considered the same together with the pleadings on record. The central issue for determination is whether the court should allow the amended plaint dated 26/09/2023, which was filed out of time.
16. Order 2, Rule 13 of the Civil Procedure Rules provides:
“The pleadings in a suit shall be closed fourteen days after service of the reply or defence to counterclaim, or, if neither is served, fourteen days after service of the defence, notwithstanding that any order or request for particulars has been made but not complied with.”
17. In this case, the statement of defence was served upon the plaintiff on 14/7/2023. This meant that 14 days after the aforementioned date, on 28/7/2023, the pleadings in this matter closed.
18. The plaintiff amended and filed its plaint on 27/09/2023, nearly two months after the close of pleadings, and without seeking leave of the court. I therefore agree with the defendants’ submissions that the amended plaint as filed was irregular.
19. However, the plaintiff subsequently filed an application dated 19/10/2023 seeking leave to amend the plaint and enjoin Daniel Maina as a co-defendant.
20. Order 8 Rule 3(1) and (2) of the Civil Procedure Rules empowers the court to allow amendment of pleadings at any stage of the proceedings on such terms as may be just. It further provides that leave may be granted even after the expiry of the limitation period, if the court considers it just to do so. The provision states as follows: -
“(1) Subject to order 1, Rules 9 and 10, Order 24, Rules 3,4,,5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.
(2) Where an application to the court for leave to make an amendment such as is mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just so to do.”
21. Further Order 8, Rule 5 of the Civil Procedure Rules gives the court the general power of amendment in the following terms: -
“ (1) For the purpose of determining the real question in controversy between the parties, or of correcting any defects or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.”
22. The Court of Appeal in Nicholas Kiptoo Arap Korir Salat -vs- Independent Electoral and Boundaries Commission & others (2013) eKLR, emphasized that procedural infractions which occasion no prejudice ought not to invalidate proceedings. Justice, it held, must not be sacrificed on the altar of strict procedural technicalities. The Court stated that:
“It is globally established that where a procedural infraction causes no injustice by way of injurious prejudice to a person such infraction should not have an invalidating effect. Justice must not be sacrificed on the altar of strict adherence to provisions of procedural law which at times create hardships and unfairness.”
23. Guided by the foregoing provisions and authority, I note that the plaintiff seeks to amend its plaint for the purpose of introducing a new defendant, which it contends is necessary for a full and effective adjudication of the issues in controversy.
24. While there was a delay of about two months in filing the amended plaint, I am persuaded that the proposed amendment raises a substantive and legitimate issue. The introduction of a new defendant will aid in resolving the real questions before the court.
25. I find that no prejudice will be suffered by the defendants if the amendment is allowed. They will have the corresponding right to amend their defence to respond to the new issues, and any inconvenience caused by the delay can be compensated by an award of costs.
26. Accordingly, the court makes the following orders:
i. The application dated 4/10/2023 is hereby dismissed with no order as to costs.
ii. The application dated 19/10/2023 is allowed in the following terms:-
a) The plaintiff is granted leave to amend its plaint.
b) Daniel Maina is hereby enjoined as a co-defendant in these proceedings.
c) The amended plaint dated 26/09/2023 is deemed as duly filed and served upon payment of the requisite fees.
d) The defendants, including the newly enjoined defendant, shall file and serve their respective amended defenses within fourteen (14) days of service of the amended plaint.
27. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
25TH SEPTEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Njanje..………….…..... for the Plaintiff
Tuwei h/b for Karimi.……..Defendant
'