[2010] KEHC 2335 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

OF KISII

Civil Suit 9 of 2006

SCHOOL COMMITTEE,

NYANSIONGO D.E.B. SCHOOL.............1ST PLAINTIFF/RESPONDENT

CHAIRMAN, BOARD OF GOVERNORS, RIGOKO

SECONDARY SCHOOL…............…...2ND PLAINTIFFS/RESPONDENTS

REGISTERED TRUSTEES, DIOCESE

OF KISII….......................................…...3RD PLAINTIFFS/RESPONDENTS

KEFA NYAUNDI ONCHIRI (suing on behalf of GESIMA TEA

BUYING CENTRE ….....................…...4TH PLAINTIFFS/RESPONDENTS

VERSUS

SEVENTH DAY CHURCH, E.A. LTD....... 1ST DEFENDANT/APPLICANT

SETTLEMENT FUND TRUSTEE ……..……….……….. 2ND DEFENDANT

RULING

On 19th October 2006 and 26th of October 2006, counsel for the parties herein argued an application seeking to declare the subdivision of land reference No. Gesima Settlement Scheme/210 to be null and void and to have the titles to the resultant subdivisions thereof, Gesima Settlement Scheme/503, 504 and 505 cancelled.The application was argued before Bauni, J.Ruling was reserved for delivery on30th November 2006. The typed ruling that is on record bears the date of delivery as6th September 2006which is obviously not correct.The ruling was delivered in the presence of the 1st defendant’s advocate only.It is not clear whether the other advocates had notice of delivery of the same.In the short ruling, the court ordered the plaintiff to amend the plaint but did not specify the time within which the amendment was to be done.

On15th July 2008the plaintiff’s advocate filed a further amended plaint.On 4th June 2009 the 1st defendant filed an application seeking to have the further amended plaint struck out.The application was made on the grounds that the further amended plaint was filed without leave and in contravention of the Civil Procedure Rules.It was also stated that the further amended plaint had not been served upon the defendants.

The plaintiff’s advocates filed a replying affidavit and stated that the ruling by Bauni, J. was delivered without notice to him.It was only in January 2008 after being served with the defendant’s list of documents that he realized that the ruling had been delivered and the court had directed that an amended plaint be filed.He had earlier filed an amended plaint on 20th of March 2006 when no leave was required to do so since the memorandum of appearance was served upon him on7th March 2006. According to the plaintiff’s counsel, the court did not fix the time within which the amendment was to be made.

Mr. Soire for the 1st defendant urged this court to strike out the further amended plaint and award costs of the suit to the defendants.He submitted that the same offends the mandatory provisions of order VIA rule 7 (I) of the Civil procedure Rules which states as follows:

“Every pleading and/or other document amended

under this order shall be endorsed with the date of

the amendment and either the date of the order

allowing the amendment or, if no order has been

made, the number of the rule in pursuant of which

the amendment was made.”

Mr. Bosire for the plaintiffs reiterated that the ruling that ordered the plaint to be amended was delivered without his awareness.He however did not state what caused the delay between January 2008 when he became aware of the ruling and15th July 2008when he filed the further amended plaint.He also did not state why he did not comply with the mandatory provisions oforder VIA rule 7 (I).

I find it difficult to believe that from 2006 when Bauni, J. delivered the ruling and January 2008, the plaintiff’s advocate was unaware of the said ruling.But even if I were to give him the benefit of doubt and accept that he became aware of the ruling in January 2008 there is no denial that upto15th July 2008he did not bother to amend the plaint or move the court accordingly.He also did not seek the consent of the defendants’ advocates to file the further amended plaint belatedly.

Order VIA rule 6states as follows:

“Where the court has made an order giving any party

leave to amend, unless that party amends within the

period specified or, if no period is specified, within

fourteen days, the order shall cease to have effect,

without prejudice to the power of the court to extend

the period.”

The plaintiffs’ counsel did not seek leave of the court to extend the period of filing the further amended plaint.The same offends the provisions oforder VIA rules 6and7as hereinabove quoted.

InSTOCKMAN ROZEN KENYA LIMITED –VS- DA GAMA ROSE GROUP OF COMPANIES LIMITED[2002] 1 KLR 572, it was held that failure to comply with the provisions oforder V1A rule 7of theCivil Procedure Rulesis fatal.I find and hold that the further amended plaint was filedout of time and without leave of the court and the same is struck out with the result that the plaintiffs’ is struck out with costs to the defendants.

DATED, SIGNED AND DELIVERED AT KISII THIS 5TH DAY OF MARCH, 2010.

D. MUSINGA

JUDGE.

5/3/2010

Before D. Musinga, J.

Mobisa – cc

Mr. Bosire for the Plaintiffs

N/A for the Defendant

Order:Ruling delivered in open court.

D. MUSINGA

JUDGE.