https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10801

**THE REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL AND TAX DIVISION** **HCOMM NO. E653 OF 2021** KINJUNJE GARDENS LIMITED………….….…….……………......PLAINTIFF VERSUS NCBA BANK (K) PLC…………………….................................1ST DEFENDANT B. GATHIRU T/A REGENT AUCTIONEERS………………...2ND DEFENDANT EQUITY BANK (KENYA) LIMITED…………….…….……..3RD DEFENDANT **RULING** 1. The plaintiff filed a Notice of Motion application dated 12th March 2025 pursuant to Sections 1, 1A, 1B, 3, 3A, 63(e) of the Civil Procedure Act, Order 8 Rule 3, Orders 11 and 50(1) of the Civil Procedure Rules, 2010.The plaintiff prays for the setting aside of the directions given by the Court for the full hearing of the suit due to non-compliance with Order 11 of the Civil Procedure Rules. The plaintiff also prays for leave to amend the defence to the counterclaim in terms of the draft amended defence to the counterclaim attached to its affidavit. The plaintiff also prays for costs of the application. 2. The application is premised on the grounds on the face of the Motion, and it is supported by the affidavit sworn on the same day by Mr. Kitheka Wambua. He averred that he is the General Manager of the plaintiff, which withdrew the main suit herein, and the 3rd defendant’s counterclaim remained on record for full hearing. He stated that the Court set the matter down for hearing, and given that the plaintiff’s suit was withdrawn, the pleadings filed therein become null and void and unavailable for purposes of hearing of the counterclaim. He prays that the plaintiff be allowed to file a list of documents, list of witnesses and witness statements before the matter can be fixed for hearing to avoid being prejudiced. He deposed that the plaintiff needs to amend its defence to the counterclaim so that the 3rd defendant can be ordered to release the plaintiff’s documents for production during hearing. He urged this Court to grant the orders being sought herein. 3. In opposition to the application, the 3rd defendant filed a replying affidavit sworn on 25th March 2025 by Mr. Kariuki King’ori, the 3rd defendant’s General Manager of Legal Services. He averred that the plaintiff has had ample time to file the pleadings and the application herein is just an afterthought to delay the matter. He stated that the case went for pre-trial directions before the Deputy Registrar on seven (7) different occasions being 13th June 2023, 18th October 2023, 21st November 2023, 13th December 2023, 29th January 2024, 11th March 2024 and 13th March 2024, and on those dates the plaintiff was represented by Mr. Moses Siagi Advocate. 4. Mr. Kingori explained that on 13th December 2023, the 3rd defendant had complied with pre-trial directions but the plaintiff prayed for more time which was granted until 29th January 2024. That on 11th and 13th March 2024, there was non-compliance. He stated that the plaintiff filed an application dated 15th August 2024 seeking to reinstate its suit which was later withdrawn on 23rd August 2024. 5. He deposed that on 19th November 2024, the Court set the matter down for hearing on 25th March 2025, which gave the plaintiff ample time to comply with pre-trial directions. He contended that the 3rd defendant will be prejudiced since it has spent time and money in the matter. He further contended that the plaintiff is seeking to introduce new issues without explanation as to why the same was not included in the original pleadings. He urged this Court to award thrown away costs of Kshs.100,000.00 should it be inclined to grant the orders sought. He argued that the application had been brought in bad faith and it should be dismissed. 6. The instant application was canvassed by way of written submissions. The plaintiff’s submissions dated 15th April 2025 were filed by the law firm of Kimani Kahete & Co. Advocates and its further submissions dated 7th November 2025 were filed by the law firm of S.N. Thuku & Associates. The 3rd defendant’s submissions dated 22nd October 2025 were filed by the law firm of Igeria & Ngugi Advocates. 7. Mr. Thuku, learned Counsel for the plaintiff submitted that the plaintiff’s case revolves around two issues; being the legal effect of the withdrawn suit on the pleadings and amendment of pleadings. He cited Section 35 of the Limitations of Actions Act and the case of **Beatrice Mumbi Wamahiu v Mobil Oil Kenya Ltd** [2011] eKLR, wherein the Court held that withdrawal of the main suit did not affect the counterclaim and that the counterclaim is treated as a different suit under Section 35 of the Limitation of Actions Act and its survival cannot be pegged on the pendency of the primary suit**.** He argued that given the withdrawal of the primary suit, all the pleadings became unavailable for purposes of future proceedings and the counterclaim operates as a separate suit hence compliance directions should be given afresh. 8. He further submitted that his prayer for amendment of pleadings is not geared towards introducing new facts or changing the character of the case, as it is meant to clarify issues. He argued that the 3rd defendant is holding the title documents for a loan process which never materialized thus the plaintiff seeks orders for the release of the same. He relied on the case of **Inter Tropical Timber Trading Limited v Kenya Power and Lighting Company Ltd** [2021] eKLR, **Bosire Ogero vs Royal Media Services** [2015] eKLR, **Daniel Ngetich & Anor v K rep Bank Ltd** [2023] eKLR, as well as the case of **St Patricks Hill School Ltd v Bank of Africa Kenya Ltd** [2018] eKLR. He maintained that the amendment is only seeking release of documents, which arises from the same set of facts. 9. Counsel for the 3rd defendant, submitted that the plaintiff has been filing numerous applications meant to delay the hearing of the case. He relied on the case of **Obessie v Obessie** (2007) 16 NWLR (Pt 1060) 223 at p.230 para. H, **Rabie v Coterell N.O. and others** [2023], **Kassam v Bank of Baroda** [2002] eKLR, and argued that the instant application is devoid of merits, brought in bad faith and ought to be dismissed. 10. In the further submissions, Mr. Thuku cited of Supreme decision in Civil Application Number 13 of 2019 **Stephen Maina Githiga & others v Kiiru Tea Factory Co Limited**, **Ali & 5 others v Kimani & 8 others.** He also citedEnvironment and Land Case No. 356 of 2019 [2025] KEELC 1208 [KLR] (12th March 2025), to the effect that the purpose of amendments is to define the real question in controversy. 11. Counsel relied on the case of **Wagiciengo v Sichangi & Partners Advocates & 2 others** (Civil Suit No. 247 of 2018) [2025] KEHC 9627 (KLR) (Civ) (3rd July 2025) (Ruling), wherein the Court found that there was a delay of 6 years, but allowed the applicant therein to amend its pleadings since no prejudice was to be suffered by the respondents. Mr. Thuku stated that the delay of 2 years and 5 months in this case is not unreasonable delay and cannot be construed to be in bad faith since no prejudice will be suffered by the 3rd defendant. **ANALYSIS AND DETERMINATION.** 1. I have considered the application filed herein and the affidavit filed in support thereof. I have also considered the replying affidavit and the written submissions filed by the Counsel for the parties. The issues that arise for determination are as follows: 2. **Whether the Court should set aside the orders setting down the suit for hearing of the counterclaim in order to allow compliance with pre-trial directions.** 3. **Whether the prayer for amendment of pleadings should be directions.** **Whether the Court should set aside the orders setting down the suit for hearing of the counterclaim in order to allow compliance with pre-trial directions.** 1. Courts have the discretion to set aside orders or directions, but the same is dependent on the facts and circumstances of the case. In this instance, the plaintiff seeks to set aside the directions that fixed the matter for hearing, after its non-compliance. 2. Having gone through the Court record, this Court notes that on 13th April 2023 the Court then (late Majanja J.), fixed the matter for mention before the Deputy Registrar on 13th June 2023, for pretrial directions. After that, the matter went before the Deputy Registrar on several occasions, on account of the plaintiff not having complied with the directions. The said instances were enumerated by the 3rd defendant in its replying affidavit. 3. This Court notes that the plaintiff has not come to Court with clean hands for reasons that it has caused inordinate delay in having this matter heard after being given numerous opportunities by the Deputy Registrar to comply with the directions given by the Court. Court orders and directions must be obeyed at all times so as to provide decorum and protect the integrity of the Court. Section 1A(3) of the Civil Procedure Act provides that a party to civil proceedings or an Advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act, and to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court. 1. The plaintiff herein failed to comply with directions given by the Court despite several mentions hence this Court was justified to set down the counterclaim for hearing to serve justice to the 3rd defendant who had complied with pre-trial directions. This Court therefore finds that the plaintiff is not entitled to the orders sought for extension of time to file its pleadings. **Whether the order for amendment of pleadings should be allowed.** 1. Order 8 Rule 3 of the Civil Procedure Rules allows for amendment of pleadings, through leave of the Court. It states that- ***“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.”** 1. The principles for amendment of pleadings were discussed by the Court of Appeal in the case of **Ochieng and others v** **First National Bank of Chicago** Civil Appeal Number 147 of 1991,as follows- 2. ***The power of the court to allow amendments is intended to determine the true substantive merits of the case;*** 3. ***the amendments should be timeously applied for;*** 4. ***power to amend can be exercised by the court at any stage of the* *proceedings;*** 5. ***that as a general rule however late the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side;*** 6. ***the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on limitations Act subject however to powers of the court to still allow and amendment notwithstanding the expiry of current period of limitation.*** 7. In this case, the plaintiff seeks to amend the defence to the counterclaim so as to add an amendment that *‘the 3rd Defendant be ordered to return the original title number 209/1817 to the Plaintiff forthwith*.’ This Court notes that the amendment is not seeking to introduce new facts or cause of action as the same is in line with the pleadings. 8. Inasmuch as amendment to pleadings can be filed at any stage of the proceedings, it is however to be noted that the same ought to be filed timeously. The plaintiff admitted that it filed the instant application after two years and five months, which in my considered view, is not unreasonable delay. Other than seek leave to amend its pleadings, the plaintiff has been dead silent on the reasons for the prolonged delay in filing the instant application. Such conduct exhibits bad faith on its part, with the intention to delay the hearing of the case. Failure by the plaintiff to file its list of documents and witness statement despite being given numerous chances, exemplify its intention to delay the matter which is against the interests of justice and expeditious disposal of cases. 9. This Court finds that the Notice of Motion application dated 12th March 2025 lacks merits. It is hereby dismissed with costs to the 3rd defendant. It is so ordered. **DATED, SIGNED and DELIVERED at KIAMBU on this 26TH day of JUNE** **2026. Ruling delivered through Microsoft Teams Online Platform.** **NJOKI MWANGI** **JUDGE** **In the presence of:** Ms Maina h/b for Mr. Thuku for the plaintiff/applicant Mr. Mbaji for the plaintiff in the counterclaim Ms Julia – Court Assistant.