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…for permission to add the second defendant apparently on the basis that in the circumstances the addition of the new second defendant was an amendment of the plaint and not an addition of a party, made before the close of pleadings…

…It provides: “(1) A party may, without the leave of the court, amend any pleading of his once at any time before the pleadings are closed” and that the amendment dated from the date of the plaint.…

…He therefore argued that there was evidence that pleadings had not closed in this case as required by order XVI Rule 5.…

…The court will begin by considering whether or not the application is defeated by the pleadings not being close.…

…any legal proceedings in any Court against any other party to the agreement … in respect of a matter agreed to be offered:- (a) any party to those proceedings may at any time after appearance, and before delivering any pleadings…

…or taking any other steps in the proceedings, apply to that Court to stay the proceedings …” Mr Kituku for the defendant submitted that a party may rely on the above subsection even after delivering pleadings.…

…From the pleadings before me, it is clear that the Plaintiff did not supply the particulars within the stipulated time. The Plaintiff supplied particulars on 4th July, 2008. That was 5 weeks after the time agreed.…

…The Plaintiff being dissatisfied with the particulars filed an application seeking to have the Defendant’s pleadings struck out. The Defendant’s Advocate did not appear for the hearing of the application.…

…Against the foregoing background information as gleaned from the pleadings of both parties, the Plaintiffs have filed an interim application by way of notice of motion dated 29th June 2007 and filed the same date.…

…The Defendants on the other hand also rely on their pleadings, replying affidavit, their written skeleton arguments as well as Case Law.…

…The 3rd defendant seeks dismissal of the suit on the basis that it is more than three months since the pleadings closed.…

…What emerges from the pleadings filed by the parties in connection with this application and submissions by learned counsel for both parties is that the plaintiff does not really seriously contest the defendant’s basic argument…

…The Respondent denies the allegations of trespass and/or damage to the Applicant’s fence and clearly demonstrates both in his pleadings and submissions by Counsel that he is opposed to the Applicant’s fencing of the plot.…

…I therefore come to the conclusion that having perused the pleadings, the affidavits and the grounds for and against the application and having heard both counsel, I am satisfied on balance of probabilities that the defendant…

…It is important to reproduce the order: "Order: By consent the issue raised in the pleadings and the question of costs are referred to arbitration. Each side to have two elders.…