REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NO. 2 OF 2020
STEPHEN WANGUSI FEDHA …………………….…..APPLICANT
VERSUS
STEEL AND CEMENT
STORE ELDORET ............................DEFENDANT/APPLICANT
RULING
1. The Plaintiff filed suit in 2024 via a plaint dated 22.1.2024 seeking that the defendant pays him a sum of Kshs. 43,000,000/- he guaranteed the defendant for a loan of kshs.50 million. On the 30.5.2024 the plaintiff filed an amended plaint. On the 28.10.2025 the applicant filed a notice of motion seeking to have the amended plaint filed on the 6.6.24 struck off for reasons that it was filed without the leave of the court.
2. The applicant also sought that the list of documents be struck off. The application was opposed the Respondent filed a replying affidavit stating that the amended plaint was to enable the court to properly determine the issues in dispute and that the defendant will not be prejudiced.
DETERMINATION
1. I have considered the rival affidavits and the law as the Civil Procedure Rules. The Respondent has admitted that the amended pleading was filed out of time. His argument is that the amended plaint was intended to enable the court to determine issues. Court process on filing is guided by Order 8 of the Civil Procedure Rules. Order 8 (1) states as follows;
(1) A party may, without the leave of the court, amend any of his pleadings once at any time before the pleadings are closed .
The defence is dated 12.3.2024. The pleadings closed once the defence was filed. The plaintiff filed the amended plaint dated 30.5.2024, without the court’s leave. This was about two and a half months after the close of pleadings. The respondent failed to file a formal application seeking leave to file the amended plaint out of time. The court has no option but to strike out the amended plaint, which was filed without the court's leave. The documents accompanying it are also struck off. Costs are awarded to the Applicant.
Dated, signed, and delivered at Bungoma on this 11 th day of March 2026.
R. E.OUGO
JUDGE
In presence of;
Applicant – Absent
Respondent- Absent
Wilkister - C/A
HCCC NO. E002 OF 2024 - RULING HCCC NO. E002 OF 2024 - RULING 1111
IN THE HIGH COURT OF KENYA AT BUNGOMA
SUCCESSION CAUSE NO. 2 OF 2020
STEPHEN WANGUSI FEDHA …………………….…..APPLICANT
VERSUS
STEEL AND CEMENT
STORE ELDORET ............................DEFENDANT/APPLICANT
RULING
1. The Plaintiff filed suit in 2024 via a plaint dated 22.1.2024 seeking that the defendant pays him a sum of Kshs. 43,000,000/- he guaranteed the defendant for a loan of kshs.50 million. On the 30.5.2024 the plaintiff filed an amended plaint. On the 28.10.2025 the applicant filed a notice of motion seeking to have the amended plaint filed on the 6.6.24 struck off for reasons that it was filed without the leave of the court.
2. The applicant also sought that the list of documents be struck off. The application was opposed the Respondent filed a replying affidavit stating that the amended plaint was to enable the court to properly determine the issues in dispute and that the defendant will not be prejudiced.
DETERMINATION
1. I have considered the rival affidavits and the law as the Civil Procedure Rules. The Respondent has admitted that the amended pleading was filed out of time. His argument is that the amended plaint was intended to enable the court to determine issues. Court process on filing is guided by Order 8 of the Civil Procedure Rules. Order 8 (1) states as follows;
(1) A party may, without the leave of the court, amend any of his pleadings once at any time before the pleadings are closed .
The defence is dated 12.3.2024. The pleadings closed once the defence was filed. The plaintiff filed the amended plaint dated 30.5.2024, without the court’s leave. This was about two and a half months after the close of pleadings. The respondent failed to file a formal application seeking leave to file the amended plaint out of time. The court has no option but to strike out the amended plaint, which was filed without the court's leave. The documents accompanying it are also struck off. Costs are awarded to the Applicant.
Dated, signed, and delivered at Bungoma on this 11 th day of March 2026.
R. E.OUGO
JUDGE
In presence of;
Applicant – Absent
Respondent- Absent
Wilkister - C/A
HCCC NO. E002 OF 2024 - RULING HCCC NO. E002 OF 2024 - RULING 1111