I. Introduction
1. Before the Honourable Court for its determination is the Notice of Motion application dated 10 th December, 2025. The application was brought by Dave Munya Mwangi, the Defendant/Applicant pursuant to the provisions of Order 2 Rule 15 (1 )(d) of the Civil Procedure Rules, 2010.
2. Upon service, the application was opposed by the Plaintiff/Respondent herein vide a Replying Affidavit dated 20 th February 2026 as sworn by his advocate on record. The Honourable Court shall be dealing with it at later on stage of this Ruling.
II. The case by the Defendant/Applicant
3. The Defendant/Applicant sought for the following orders:-
a) That the Amended Plaint dated 1 st December, 2025 be struck out with costs to the Defendant.
b) That the Amended reply to Defence and Defence to Counter - Claim dated 1 st December, 2025 be struck out.
c) That the costs of this application be provided for
4. The application was premised on the grounds, testimonial facts and averments by a 7 Paragraphed Supporting Affidavit sworn by LYNETTE AWINO OKETCH an Advocate with the conduct of the matter on behalf of the Defendant/Applicant who averred as follows that:-
a) She was an Advocate of the High Court of Kenya practising in the name and style of Messrs. L.A Oketch & Company Advocates and had the conduct of the matter on behalf of the Defendant/Applicant herein hence duly authorised to make this affidavit.
b) Pursuant to leave granted by the court on 16 th October, 2025 the Defendant filed an Amended Defence and Counter - Claim dated 21 st October, 2025 which was served upon the Counsel for the Plaintiff’s Messrs Asige Kiverenge & Anyazwa by an email of 22 nd October, 2025.
c) When the Court granted leave to the Defendant to file the Amended Defence and Counter - Claim, the Plaintiff/Respondent was also granted corresponding leave to file a reply to the Amended Defence and Defence to Counter - Claim within 14 days. Despite of this, the Plaintiff did not comply to the said directive by the Court.
d) On 2 nd December, 2025 when the matter came up for mention to confirm compliance with the directives, Mr. Asige Learned Counsel for the Plaintiff informed court that he had complied.
e) However, it turned out to the contrary to his averments, the Plaintiff had only filed his amended pleadings on 2 nd December, 2025 being an Amended Plaint dated 1 st December, 2025 without the leave of court.
III. The responses by the Plaintiff/Respondent
5. The Plaintiff/Respondent filed a Replying Affidavit sworn by JAPHETH ASIGE the Advocates on record for the Plaintiff herein and who was duly authorised to make the affidavit. The deponent averred as follows that:-
a) This Honourable Court granted leave to the Respondent to amend their pleadings specifically on the plot number of the title deed.
b) With that, the Plaintiffs were given corresponding leave to amend their pleadings.
c) Despite of this, the Defendant amended its pleadings beyond the scope granted by the Honourable Court.
d) The amendments made by the Plaintiff were technical in nature and never affected the cause of action of the suit.
e) It was pleaded that this Honourable Court had the power to enlarge the time as may be required to meet the ends of justice in line with Section 95 of the Civil Procedure Act, Cap. 21.
f) Further that, this Honourable Court enjoys a broad discretion in matters concerning the amendment of pleadings.
g) The Defendant herein shall not be prejudiced by the amendments made. The deponent opposed the application as prayed.
IV. Submissions
6. On 15 th December, 2025, when this matter came up for directions, the parties were guided by Honourable Court to have the application dated 10 th December 2025 canvassed by way of written submissions.
7. The parties complied to the directive and the submissions are thus summarised herein below.
B. The Written Submissions by the Defendants/Applicants
8. The Law firm of Messrs. L.A Oketch & Co Advocates filed submissions on behalf of the Defendant herein. M/s. Oketch Advocate commenced her submissions by providing a brief background of the matter. In summary, it was submitted that the impugned amended pleadings ought to have been filed within fourteen (14) days after service of the Amended Defence and Counter - Claim upon the Plaintiff.
9. The Learned Counsel submitted that the pleadings were filed forty - two [42] days after the Plaintiff’s Counsel was served with the Amended Defence and Counter - Claim and without the leave of court.
10. According to the Defendant/Applicant, neither the general power of the court to allow amendment of pleadings nor the object of amending pleadings is an issue of conflict in the present application. That the authorities cited in the in the Plaintiff’s submissions was of no relevance as the court was tasked with determination of whether the amended pleadings filed should be struck out or not. The court was urged to allow the application as prayed.
B. The Written Submissions by the Plaintiff/Respondent.
11. The Law firm of Messrs. Asige Kiverenge & Anyanzwa
Advocates filed written submissions dated 27 th February, 2026 on behalf of the Plaintiff/Respondent herein. Mr. Asige Advocate provided a background to the matter. The Counsel stated that their was only one single issue to be determined by the Court – whether the application by the defendant had any merit or not.
12. The Learned Counsel averred that it was the Claimant’s submission that the amendments made on the three documents did not prejudice the Defendant in any way as they were technical in nature and/or was consistent with the cause of action. The Counsel submitted that the Defendant/Applicant had not demonstrated in the supporting affidavit or at all how the documents would be detrimental to their case. That a procedural lapse, without fraud or intention to overreach, should not bar a party from being heard on the merits. Allowing the amendment upheld substantive justice the right to a fair hearing, as the Defendant/Applicant would retain full opportunity to respond. Amendment of pleadings was a statutory right for under the provision of Section 100 of the Civil Procedure Act, Cap. 21.
13. According to Learned Counsel, the matter of leave in this specific instance was an irregularity curable under the provision of Article 159 of the Constitution of Kenya, 2010. To buttress on this legal position, Court was referred to the holding in the cases of:- “Institute for Social Accountability & Another – Versus – Parliament of Kenya & 3 Others Nakuru Petition No. 16 of 2013 ( 2014) eKLR” which held that:-
“The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on false hypothesis of the facts already pleaded or the relief already claimed, but rather on the basis of the true state of the facts which the parties really and finally intended to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it to form of the action or proceedings.”
and the case of:- “ Eastern Bakery – Versus - Castelino [1958] 1 EA 461” , where the court held that amendments to pleadings before hearing should generally be allowed if they did not cause injustice to the opposing party, and any inconvenience could be compensated by costs. An amendment may introduce a new case, but it cannot substitute one distinct cause of action for another, change the subject matter, or fundamentally alter the character of the suit. Leave to amend would be refused where it prejudices the other party's existing rights, such as defeating a limitation defence. The guiding principle was that amendments should not be permitted if they cause injustice to the other side. Additionally, the case of:- “Ocean Foods Limited – Versus – Osotpa Company & 2 Others (2020) eKLR,” which held:-
“The Court however notes that, as rightly pointed out by the Defendants, there was a long delay, on the part of the Plaintiff in not only filing the Defence to Counter – Claim out of time, but also in filing the instant application. I find that the apparent long delay notwithstanding, this Court still has the inherent power under Section 3A of the Civil Procedure Act, to permit the Plaintiff to amend its pleadings at any time before Judgement”
14. Lastly, it was submitted that the Defendant/Applicant went beyond the directions of the court by making amendments to its pleadings beyond the scope granted. This was by adding a new paragraph while the scope granted by the court was with regard to the title number alone. The Plaintiff relied on the fundamental principle of equity that “he who comes to equity must come with clean hands" . That the Defendant/Applicant could not benefit from a wrongdoing they purport to stop. That by going beyond the purview of the court, the Defendant/Applicant broke the same rule he was seeking to enforce. In conclusion, the Plaintiff submitted that that the Notice of Motion application be dismissed with costs.
VII . Analysis and Determination
15. I have carefully read and considered the pleadings herein by the Applicants and the Respondent, the written submissions by all the parties, the cited authorities, the relevant provisions of the Constitution of Kenya, 2010 and statutes.
16. In order to arrive at an informed, just, equitable and reasonable decision, the Honourable Court has framed the following three [3] issues for its determination. These are:
a) Whether the application dated 10 th December, 2025 is merited?
b) Whether the parties are entitled to the reliefs sought.
c) Who bears the costs of the application dated 10 th December, 2025 ?
ISSUE No. a). Whether the application dated 10 th December, 2025 is merited?
17. Under this Sub heading the Honourable Court shall be examining whether the application by the Defendant/Applicant has any merit or not. The main substratum of the application is to strike out the pleadings filed by the Plaintiff without the leave of Court and/or out of time whatsoever. In order to proceed on smoothly, the Court wishes to lay down the legal principles surrounding the pith and substance of the application. It is trite that the power of the Court to strike out pleadings is provided for under the provision of Order 2 Rule 15 (1) of the Civil Procedure Rules, 2010 that provides:-
“At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—
[a] it discloses no reasonable cause of action or defence in law; or
[b] it is scandalous, frivolous or vexatious; or
[c] it may prejudice, embarrass or delay the fair trial of the action; or
[d] 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.”
18. Concerning striking out of pleadings, the Court of Appeal in the case of:- “ Co - operative Merchant Bank Limited – Versus - George Fredrick Wekesa Civil Appeal No. 54 of 1999” as cited with approval in the case of:- “ Jubilee Insurance Co. Limited – Versus - Grace Anyona Mbinda [2016] eKLR” , rendered that:
“The power of the court to strike out pleadings under Order 6 Rule 13 (1) (b) (c) & (d) is discretionary …. Striking out a pleading is a draconian act, which may only be resorted to, in plain cases. Whether or not a case is plain is a matter of fact….” See also Kivanga Estates Limited – Versus - National Bank of Kenya Limited [2017] eKLR”.
19. Similarly, in the now famous Classicus locus case of:-“ DT Dobie & Co (K) Limited – Versus - Muchina, [1982] KLR” , the Court of Appeal when interpreting Order VI Rule 13 (1) of the repealed Civil Procedure Rules which is the equivalent of the current Order 2 Rule 15 defined the term “reasonable cause of action” to mean “an action with some chance of success when allegations in the Plaint only are considered. A cause of action will not be considered reasonable if it does not state such facts as to support the claim prayer. …”. The court went further to define what constitutes a cause of action and held that a cause of action referred to an act on the part of the Defendant which gave the Plaintiff a cause of complaint. In the same case, Madan JA (as he then was) expressed himself as follows:
“The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court. At this stage, the court ought not to deal with any merits of the case for that is a function solely reserved for the judge at the trial as the court itself is usually fully informed so as to deal with the merits without discovery, without oral evidence tested by cross-examination in the ordinary way … no suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward ….”
20. Additionally, in the case of:- “ Crescent Construction Company Limited – Versus - Delphis Bank Limited, [2007] eKLR”, the Court of Appeal emphasized the need for a court to exercise its discretion with utmost care when faced with an application such as the present one because needless to state, striking out pleadings is a draconian action which may have the consequences of slamming the door of justice on the face of one party without according it an opportunity to be heard.
21. In expounding the rationale for the need to exercise great caution in determining applications seeking striking out of pleadings, the Court of Appeal in the case of:- “ Crescent Construction Case (Supra)” , stated as follows:-
“However, one thing remains clear, and that is that the power to strike out a pleading is a discretionary one. It is to be exercised with the greatest care and caution. This comes from the realisation that the rules of natural justice require that the court must not drive away any litigant however weak his case may be from the seat of justice. This is a time-honoured legal principle. At the same time, it is unfair to drag a person to the seat of justice when the case purportedly brought against him is a non-starter.”
ISSUE No. b). Whether the parties are entitled to the reliefs sought.
22. Guided by the above legal principles, I will now turn to consider the merits of the instant application before court and whether the parties are entitled to the reliefs sought. At this juncture, it will be unavoidable to extrapolate on the brief facts relevant to the filed application of the matter. It is noteworthy that pursuant to leave granted by the court on 16 th October, 2025 the Defendant/Applicant filed an Amended Defence and Counter - Claim dated 21 st October, 2025 which was served upon the Plaintiff/Respondent’s Counsel Messrs. Asige Kiverenge & Anyazwa Company Advocates through an email of 22 nd October, 2025. The court further notes that when granting leave to file the Amended Defence and Counter - Claim, the Plaintiff was also granted corresponding leave to file a Reply to the Amended Defence and Defence to Counter - Claim within 14 days. Ideally, the Plaintiff did not however comply to the said directive nor observed the time – lines granted by court.
23. The Plaintiff/Respondent in his response to the application stated that the Defendant/Applicant had gone beyond the scope of what he had been allowed to amend and which was the tile number only. This meant that despite making an attempt to discredit the pleadings by the Plaintiff/Respondent, they had not acted within the permissible limits earlier given by the court and had thus not come before court with clean hands. That if anything, the amendment by the Plaintiff/Respondent did not prejudice the Defendant/Applicant in any way as the prejudice had so far not been demonstrated.
24. The court notes that the Plaintiff/Respondent filed the emended pleadings 42 days after the time limit set by the court and the amended plaint was infact filed without leave of court. The blatant breach of a clear Court Order is in my opinion prejudicial to the administration of justice. Certainly, in the circumstances this cannot merely be washed away as being procedural technicalities as envisaged under the provision of Article 159 ( 2 ) ( d) of the Constitution of Kenya, 2010. To condone such conduct would undermine the authority of the Court and encourage indiscipline in litigation. In my view, this position is supported by the holding of Ojwang, J [as he then was] in the case of:- “ Haile Selassie Avenue Development Co. Limited – Versus - Josephat Muriithi & 10 others [2004] eKLR” where he held that:-
“The rules of procedure which regulate the trial process are intended to serve the constructive purpose of expediting trials, and facilitating judicial decision-making with finality. These rules cannot be said to be oppressive to parties, or that they necessarily wreak injustice. On the facts of this particular case, the Defendants ought to have complied with these rules of procedure.”
25. Based on the foregoing, the Honourable Court is satisfied that the Plaintiff/Respondent’s Amended Plaint and reply to Defence and Defence to Counter - Claim are irregular, incompetent, and improperly on record, having been filed in breach of a Court Order and without leave of court.
26. Therefore, I find that this is one of the clearest of cases where the Court’s discretion ought to be invoked against the Plaintiff/Respondent given his non - compliance and failure to regularize his position. Thus, it follows suit that the Defendant/Applicant’s application dated 10 th December, 2025 should be allowed to succeed for being meritorious whatsoever.
ISSUE No. c). Who bears the costs of the application dated 10 th December, 2025?
27. It is now well established that the issue of costs are at the discretion of Court. This legal position was well spelt out in the case of:- “ Farah Adwa Gullet – Versus - CMC Motors Group Limited [2017] eKLR” the Court of Appeal held as follows:-
“…..it is our finding that the position in law is that costs are at the discretion of the Court seized of the matter with the usual caveat being that such discretion should be exercised judiciously, meaning, without caprice or whim and on sound reasoning.”
28. Costs mean the award a party is granted at the conclusion of a legal action or proceedings in any litigation. The Proviso of Section 27 of the Civil Procedure Act, Cap. 21 provides that costs should follow the event. By event it means the result or outcome of the legal action.
29. In the case of: “ Reid, Hewitt & Company – Versus - Joseph, AIR 1918 Cal 717 and Myres – Versus - Defries (1880) 5 Ex D 180, the House of Lords noted that: “The expression ‘costs shall follow the event’ means that the party, who, on the whole, succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it.”
30. Given the circumstances of what is presently before this court, the court opines that it will be proper for each party to bear its own costs.
VIII. Conclusion and Disposition
31. Consequently, upon conducting an elaborate analysis of the issues set out herein, based on the Principles of Preponderance of Probabilities and the balance of convenience, this Honourable Court specifically proceeds to grant the following orders:-
a) THAT the Notice of Motion application dated 10 th December, 2025 be and is hereby found to be merited.
b) THAT the amended plaint dated 1 st December 2025 be and is hereby struck out.
c) THAT the Amended reply to Defence and Defence to Counter - Claim dated 1 st December, 2025 be and is hereby struck out
d) THAT the matter to be mention on 13 th October, 2026 for purposes of ascertaining full compliance in consonance with the provision of Order 11 of the Civil Procedure Rules, 2010 and taking a hearing date by the consensus of the parties thereof before ELC No. 1 Kwale.
e) THAT each party to bear its own costs.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS …. DAY OF ……30 TH …....JULY …….2026
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) Mr. Asige Advocate for the Plaintiff/Respondent.
c) No appearance for the Defendant/Applicant.
1. Before the Honourable Court for its determination is the Notice of Motion application dated 10 th December, 2025. The application was brought by Dave Munya Mwangi, the Defendant/Applicant pursuant to the provisions of Order 2 Rule 15 (1 )(d) of the Civil Procedure Rules, 2010.
2. Upon service, the application was opposed by the Plaintiff/Respondent herein vide a Replying Affidavit dated 20 th February 2026 as sworn by his advocate on record. The Honourable Court shall be dealing with it at later on stage of this Ruling.
II. The case by the Defendant/Applicant
3. The Defendant/Applicant sought for the following orders:-
a) That the Amended Plaint dated 1 st December, 2025 be struck out with costs to the Defendant.
b) That the Amended reply to Defence and Defence to Counter - Claim dated 1 st December, 2025 be struck out.
c) That the costs of this application be provided for
4. The application was premised on the grounds, testimonial facts and averments by a 7 Paragraphed Supporting Affidavit sworn by LYNETTE AWINO OKETCH an Advocate with the conduct of the matter on behalf of the Defendant/Applicant who averred as follows that:-
a) She was an Advocate of the High Court of Kenya practising in the name and style of Messrs. L.A Oketch & Company Advocates and had the conduct of the matter on behalf of the Defendant/Applicant herein hence duly authorised to make this affidavit.
b) Pursuant to leave granted by the court on 16 th October, 2025 the Defendant filed an Amended Defence and Counter - Claim dated 21 st October, 2025 which was served upon the Counsel for the Plaintiff’s Messrs Asige Kiverenge & Anyazwa by an email of 22 nd October, 2025.
c) When the Court granted leave to the Defendant to file the Amended Defence and Counter - Claim, the Plaintiff/Respondent was also granted corresponding leave to file a reply to the Amended Defence and Defence to Counter - Claim within 14 days. Despite of this, the Plaintiff did not comply to the said directive by the Court.
d) On 2 nd December, 2025 when the matter came up for mention to confirm compliance with the directives, Mr. Asige Learned Counsel for the Plaintiff informed court that he had complied.
e) However, it turned out to the contrary to his averments, the Plaintiff had only filed his amended pleadings on 2 nd December, 2025 being an Amended Plaint dated 1 st December, 2025 without the leave of court.
III. The responses by the Plaintiff/Respondent
5. The Plaintiff/Respondent filed a Replying Affidavit sworn by JAPHETH ASIGE the Advocates on record for the Plaintiff herein and who was duly authorised to make the affidavit. The deponent averred as follows that:-
a) This Honourable Court granted leave to the Respondent to amend their pleadings specifically on the plot number of the title deed.
b) With that, the Plaintiffs were given corresponding leave to amend their pleadings.
c) Despite of this, the Defendant amended its pleadings beyond the scope granted by the Honourable Court.
d) The amendments made by the Plaintiff were technical in nature and never affected the cause of action of the suit.
e) It was pleaded that this Honourable Court had the power to enlarge the time as may be required to meet the ends of justice in line with Section 95 of the Civil Procedure Act, Cap. 21.
f) Further that, this Honourable Court enjoys a broad discretion in matters concerning the amendment of pleadings.
g) The Defendant herein shall not be prejudiced by the amendments made. The deponent opposed the application as prayed.
IV. Submissions
6. On 15 th December, 2025, when this matter came up for directions, the parties were guided by Honourable Court to have the application dated 10 th December 2025 canvassed by way of written submissions.
7. The parties complied to the directive and the submissions are thus summarised herein below.
B. The Written Submissions by the Defendants/Applicants
8. The Law firm of Messrs. L.A Oketch & Co Advocates filed submissions on behalf of the Defendant herein. M/s. Oketch Advocate commenced her submissions by providing a brief background of the matter. In summary, it was submitted that the impugned amended pleadings ought to have been filed within fourteen (14) days after service of the Amended Defence and Counter - Claim upon the Plaintiff.
9. The Learned Counsel submitted that the pleadings were filed forty - two [42] days after the Plaintiff’s Counsel was served with the Amended Defence and Counter - Claim and without the leave of court.
10. According to the Defendant/Applicant, neither the general power of the court to allow amendment of pleadings nor the object of amending pleadings is an issue of conflict in the present application. That the authorities cited in the in the Plaintiff’s submissions was of no relevance as the court was tasked with determination of whether the amended pleadings filed should be struck out or not. The court was urged to allow the application as prayed.
B. The Written Submissions by the Plaintiff/Respondent.
11. The Law firm of Messrs. Asige Kiverenge & Anyanzwa
Advocates filed written submissions dated 27 th February, 2026 on behalf of the Plaintiff/Respondent herein. Mr. Asige Advocate provided a background to the matter. The Counsel stated that their was only one single issue to be determined by the Court – whether the application by the defendant had any merit or not.
12. The Learned Counsel averred that it was the Claimant’s submission that the amendments made on the three documents did not prejudice the Defendant in any way as they were technical in nature and/or was consistent with the cause of action. The Counsel submitted that the Defendant/Applicant had not demonstrated in the supporting affidavit or at all how the documents would be detrimental to their case. That a procedural lapse, without fraud or intention to overreach, should not bar a party from being heard on the merits. Allowing the amendment upheld substantive justice the right to a fair hearing, as the Defendant/Applicant would retain full opportunity to respond. Amendment of pleadings was a statutory right for under the provision of Section 100 of the Civil Procedure Act, Cap. 21.
13. According to Learned Counsel, the matter of leave in this specific instance was an irregularity curable under the provision of Article 159 of the Constitution of Kenya, 2010. To buttress on this legal position, Court was referred to the holding in the cases of:- “Institute for Social Accountability & Another – Versus – Parliament of Kenya & 3 Others Nakuru Petition No. 16 of 2013 ( 2014) eKLR” which held that:-
“The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on false hypothesis of the facts already pleaded or the relief already claimed, but rather on the basis of the true state of the facts which the parties really and finally intended to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it to form of the action or proceedings.”
and the case of:- “ Eastern Bakery – Versus - Castelino [1958] 1 EA 461” , where the court held that amendments to pleadings before hearing should generally be allowed if they did not cause injustice to the opposing party, and any inconvenience could be compensated by costs. An amendment may introduce a new case, but it cannot substitute one distinct cause of action for another, change the subject matter, or fundamentally alter the character of the suit. Leave to amend would be refused where it prejudices the other party's existing rights, such as defeating a limitation defence. The guiding principle was that amendments should not be permitted if they cause injustice to the other side. Additionally, the case of:- “Ocean Foods Limited – Versus – Osotpa Company & 2 Others (2020) eKLR,” which held:-
“The Court however notes that, as rightly pointed out by the Defendants, there was a long delay, on the part of the Plaintiff in not only filing the Defence to Counter – Claim out of time, but also in filing the instant application. I find that the apparent long delay notwithstanding, this Court still has the inherent power under Section 3A of the Civil Procedure Act, to permit the Plaintiff to amend its pleadings at any time before Judgement”
14. Lastly, it was submitted that the Defendant/Applicant went beyond the directions of the court by making amendments to its pleadings beyond the scope granted. This was by adding a new paragraph while the scope granted by the court was with regard to the title number alone. The Plaintiff relied on the fundamental principle of equity that “he who comes to equity must come with clean hands" . That the Defendant/Applicant could not benefit from a wrongdoing they purport to stop. That by going beyond the purview of the court, the Defendant/Applicant broke the same rule he was seeking to enforce. In conclusion, the Plaintiff submitted that that the Notice of Motion application be dismissed with costs.
VII . Analysis and Determination
15. I have carefully read and considered the pleadings herein by the Applicants and the Respondent, the written submissions by all the parties, the cited authorities, the relevant provisions of the Constitution of Kenya, 2010 and statutes.
16. In order to arrive at an informed, just, equitable and reasonable decision, the Honourable Court has framed the following three [3] issues for its determination. These are:
a) Whether the application dated 10 th December, 2025 is merited?
b) Whether the parties are entitled to the reliefs sought.
c) Who bears the costs of the application dated 10 th December, 2025 ?
ISSUE No. a). Whether the application dated 10 th December, 2025 is merited?
17. Under this Sub heading the Honourable Court shall be examining whether the application by the Defendant/Applicant has any merit or not. The main substratum of the application is to strike out the pleadings filed by the Plaintiff without the leave of Court and/or out of time whatsoever. In order to proceed on smoothly, the Court wishes to lay down the legal principles surrounding the pith and substance of the application. It is trite that the power of the Court to strike out pleadings is provided for under the provision of Order 2 Rule 15 (1) of the Civil Procedure Rules, 2010 that provides:-
“At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—
[a] it discloses no reasonable cause of action or defence in law; or
[b] it is scandalous, frivolous or vexatious; or
[c] it may prejudice, embarrass or delay the fair trial of the action; or
[d] 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.”
18. Concerning striking out of pleadings, the Court of Appeal in the case of:- “ Co - operative Merchant Bank Limited – Versus - George Fredrick Wekesa Civil Appeal No. 54 of 1999” as cited with approval in the case of:- “ Jubilee Insurance Co. Limited – Versus - Grace Anyona Mbinda [2016] eKLR” , rendered that:
“The power of the court to strike out pleadings under Order 6 Rule 13 (1) (b) (c) & (d) is discretionary …. Striking out a pleading is a draconian act, which may only be resorted to, in plain cases. Whether or not a case is plain is a matter of fact….” See also Kivanga Estates Limited – Versus - National Bank of Kenya Limited [2017] eKLR”.
19. Similarly, in the now famous Classicus locus case of:-“ DT Dobie & Co (K) Limited – Versus - Muchina, [1982] KLR” , the Court of Appeal when interpreting Order VI Rule 13 (1) of the repealed Civil Procedure Rules which is the equivalent of the current Order 2 Rule 15 defined the term “reasonable cause of action” to mean “an action with some chance of success when allegations in the Plaint only are considered. A cause of action will not be considered reasonable if it does not state such facts as to support the claim prayer. …”. The court went further to define what constitutes a cause of action and held that a cause of action referred to an act on the part of the Defendant which gave the Plaintiff a cause of complaint. In the same case, Madan JA (as he then was) expressed himself as follows:
“The court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof before dismissing a case for not disclosing a reasonable cause of action or being otherwise an abuse of the process of the court. At this stage, the court ought not to deal with any merits of the case for that is a function solely reserved for the judge at the trial as the court itself is usually fully informed so as to deal with the merits without discovery, without oral evidence tested by cross-examination in the ordinary way … no suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward ….”
20. Additionally, in the case of:- “ Crescent Construction Company Limited – Versus - Delphis Bank Limited, [2007] eKLR”, the Court of Appeal emphasized the need for a court to exercise its discretion with utmost care when faced with an application such as the present one because needless to state, striking out pleadings is a draconian action which may have the consequences of slamming the door of justice on the face of one party without according it an opportunity to be heard.
21. In expounding the rationale for the need to exercise great caution in determining applications seeking striking out of pleadings, the Court of Appeal in the case of:- “ Crescent Construction Case (Supra)” , stated as follows:-
“However, one thing remains clear, and that is that the power to strike out a pleading is a discretionary one. It is to be exercised with the greatest care and caution. This comes from the realisation that the rules of natural justice require that the court must not drive away any litigant however weak his case may be from the seat of justice. This is a time-honoured legal principle. At the same time, it is unfair to drag a person to the seat of justice when the case purportedly brought against him is a non-starter.”
ISSUE No. b). Whether the parties are entitled to the reliefs sought.
22. Guided by the above legal principles, I will now turn to consider the merits of the instant application before court and whether the parties are entitled to the reliefs sought. At this juncture, it will be unavoidable to extrapolate on the brief facts relevant to the filed application of the matter. It is noteworthy that pursuant to leave granted by the court on 16 th October, 2025 the Defendant/Applicant filed an Amended Defence and Counter - Claim dated 21 st October, 2025 which was served upon the Plaintiff/Respondent’s Counsel Messrs. Asige Kiverenge & Anyazwa Company Advocates through an email of 22 nd October, 2025. The court further notes that when granting leave to file the Amended Defence and Counter - Claim, the Plaintiff was also granted corresponding leave to file a Reply to the Amended Defence and Defence to Counter - Claim within 14 days. Ideally, the Plaintiff did not however comply to the said directive nor observed the time – lines granted by court.
23. The Plaintiff/Respondent in his response to the application stated that the Defendant/Applicant had gone beyond the scope of what he had been allowed to amend and which was the tile number only. This meant that despite making an attempt to discredit the pleadings by the Plaintiff/Respondent, they had not acted within the permissible limits earlier given by the court and had thus not come before court with clean hands. That if anything, the amendment by the Plaintiff/Respondent did not prejudice the Defendant/Applicant in any way as the prejudice had so far not been demonstrated.
24. The court notes that the Plaintiff/Respondent filed the emended pleadings 42 days after the time limit set by the court and the amended plaint was infact filed without leave of court. The blatant breach of a clear Court Order is in my opinion prejudicial to the administration of justice. Certainly, in the circumstances this cannot merely be washed away as being procedural technicalities as envisaged under the provision of Article 159 ( 2 ) ( d) of the Constitution of Kenya, 2010. To condone such conduct would undermine the authority of the Court and encourage indiscipline in litigation. In my view, this position is supported by the holding of Ojwang, J [as he then was] in the case of:- “ Haile Selassie Avenue Development Co. Limited – Versus - Josephat Muriithi & 10 others [2004] eKLR” where he held that:-
“The rules of procedure which regulate the trial process are intended to serve the constructive purpose of expediting trials, and facilitating judicial decision-making with finality. These rules cannot be said to be oppressive to parties, or that they necessarily wreak injustice. On the facts of this particular case, the Defendants ought to have complied with these rules of procedure.”
25. Based on the foregoing, the Honourable Court is satisfied that the Plaintiff/Respondent’s Amended Plaint and reply to Defence and Defence to Counter - Claim are irregular, incompetent, and improperly on record, having been filed in breach of a Court Order and without leave of court.
26. Therefore, I find that this is one of the clearest of cases where the Court’s discretion ought to be invoked against the Plaintiff/Respondent given his non - compliance and failure to regularize his position. Thus, it follows suit that the Defendant/Applicant’s application dated 10 th December, 2025 should be allowed to succeed for being meritorious whatsoever.
ISSUE No. c). Who bears the costs of the application dated 10 th December, 2025?
27. It is now well established that the issue of costs are at the discretion of Court. This legal position was well spelt out in the case of:- “ Farah Adwa Gullet – Versus - CMC Motors Group Limited [2017] eKLR” the Court of Appeal held as follows:-
“…..it is our finding that the position in law is that costs are at the discretion of the Court seized of the matter with the usual caveat being that such discretion should be exercised judiciously, meaning, without caprice or whim and on sound reasoning.”
28. Costs mean the award a party is granted at the conclusion of a legal action or proceedings in any litigation. The Proviso of Section 27 of the Civil Procedure Act, Cap. 21 provides that costs should follow the event. By event it means the result or outcome of the legal action.
29. In the case of: “ Reid, Hewitt & Company – Versus - Joseph, AIR 1918 Cal 717 and Myres – Versus - Defries (1880) 5 Ex D 180, the House of Lords noted that: “The expression ‘costs shall follow the event’ means that the party, who, on the whole, succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it.”
30. Given the circumstances of what is presently before this court, the court opines that it will be proper for each party to bear its own costs.
VIII. Conclusion and Disposition
31. Consequently, upon conducting an elaborate analysis of the issues set out herein, based on the Principles of Preponderance of Probabilities and the balance of convenience, this Honourable Court specifically proceeds to grant the following orders:-
a) THAT the Notice of Motion application dated 10 th December, 2025 be and is hereby found to be merited.
b) THAT the amended plaint dated 1 st December 2025 be and is hereby struck out.
c) THAT the Amended reply to Defence and Defence to Counter - Claim dated 1 st December, 2025 be and is hereby struck out
d) THAT the matter to be mention on 13 th October, 2026 for purposes of ascertaining full compliance in consonance with the provision of Order 11 of the Civil Procedure Rules, 2010 and taking a hearing date by the consensus of the parties thereof before ELC No. 1 Kwale.
e) THAT each party to bear its own costs.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICROSOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS …. DAY OF ……30 TH …....JULY …….2026
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) Mr. Asige Advocate for the Plaintiff/Respondent.
c) No appearance for the Defendant/Applicant.