[2016] KEELC 420 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT NAIROBI

ELC NO. 666 OF 2002(O.S)

STANLEY MATHAARA MUCHUI................................1ST PLAINTIFF

PETER KINYURU MURIU..........................................2ND PLAINTIFF

VERSUS

MAKOMBOKI TEA FACTORY................................1ST DEFENDANT

K.T.D.A LIMITED.....................................................2ND DEFENDANT

ATTORNEY GENERAL..........................................3RD DEFENDANT

PATRICK MWANGI NJOROGE.............................4TH DEFENDANT

RULING

The 2nd, 3rd and 4th Defendants were added to this suit on 5th February 2003 through amended Plaint dated 30th January 2003. The amendment of the plaint to add the said defendants to the suit was carried out without leave of the court before the pleadings closed. The 3rd defendant filed its statement of defence on 17th March 2003. The 2nd and 4th defendants filed a joint statement of defence on 24th March 2003 while the 1st Defendant filed its statement of defence on 29th April 2003.

On 20th May 2002, the 1st defendant filed a notice of preliminary objection to the suit herein and sought the striking out of the same on among other grounds that the amended plaint that added the 2nd, 3rd and 4th defendants to the suit was accompanied by a defective affidavit. The 1st Defendant’s preliminary objection was heard by Rawal J. (as she then was) on 12th February, 2007. In a ruling that was delivered on 28th February, 2007, Rawal J. made a finding that the verifying that had accompanied the amended plaint was defective and proceeded to strike out the amended plaint dated 30th January 2003 with costs. After the striking out of the amended plaint, the parties proceeded with the matter as if nothing had happened.

What I now have before me is another notice of preliminary objection by the 1st, 2nd and 4th Defendants. The 1st, 2nd and 4th defendants have contended that since the amended plaint dated 30th January 2003 was struck out by Rawal J. on 25th February 2007, there is no suit pending against the 1st, 2nd and 4th Defendants. The 1st, 2nd and 4th defendants’ preliminary objection was argued by way of written submissions. I have considered the 1st, 2nd and 4th Defendants’ preliminary objection together with the submissions which were filed in support thereof. I have also considered the submissions by the Plaintiffs’ advocates in opposition to the objection. As I have stated at the beginning of this ruling, the 2nd, 3rd and 4th defendants were added to this suit through the amended plaint dated 30th January 2003. It is not disputed that the said amended plaint was struck out by Rawal J. on 28th February 2007 on the ground that it was accompanied by a defective verifying affidavit. I am in agreement with the 1st, 2nd and 4th defendants argument that once the amended plaint was struck out, that marked the end of the Plaintiffs’ claim against the 2nd, 3rd and 4th defendants who were added to the suit herein through the amended plaint which ceased to exist. I have agonized over the fate of the 1st defendant. The 1st defendant was a party to the suit before the amendment of the plaint which brought in the 2nd to 4th defendants to the suit. As I have stated above, the amended plaint was struck out on a technicality namely; that the same was not accompanied by a competent verifying affidavit. I am of the view that where an amended plaint is struck out in the circumstances such us this, nothing stops the Plaintiffs from going back to the original plaint. I am of the opinion that where a court finds a pleading to be defective and proceeds to strike out the same, such a pleading is deemed as having never existed for all intents and purposes. In the circumstances, there is no reason why the plaintiffs herein who had filed acompetent suit but purported to amend the same which amendment turned out to be defective null and void should not be allowed to revert to the original plaint.

I am fully in agreement with the decision of Ringera J. (as he then was) in Mutuku and 3 others vs. United Insurance Co. Ltd. (2002) KLR 250 which was adopted by Makhandia J. (as he then was) in Nyeri HCCC No. 108 of 2004, Cecilia Wamuyu Kabu & another Vs. Zipporah Wangui Kabu (unreported) to the effect that an amended pleading supersedes and replaces the original pleadings. That in my view is the position where the amended pleading is valid but not like in this case where the amended pleading was found to be defective null and void. If the 1stdefendant herein had pleaded to the original plaint that was filed herein by the Plaintiff on 18th April, 2002, I would not have hesitated to find and hold that when the amended plaint was struck out by the court, the parties reverted to the status quo prior to the amendment of the plaint.I have noted however that the 1st Defendant like the 2nd, 3rd and 4th defendants filed its statement of defence to the amended plaint and not to the original plaint. It follows therefore that when the amended plaint in respect to which the 1st defendant had filed a defence was struck out, no pleading was left in place on the basis of which this suit can proceed as against the 1st defendant. The 1st defendant having filed its defence to the amended Plaint which was struck out, the Plaintiffs cannot pursue their claims against the 1st defendant on the basis of the original plaint which the plaintiff had not pleaded to.

Due to the foregoing,it is my finding that there is no suit pending herein against the defendants. The 1st, 2nd and 4thdefendants’preliminary objection is upheld.Since the defendants had been awarded costs of the suit when amended plaint was struck out on 28th February 2007, I make no further order as to costs.

Delivered and Dated at Nairobi this 2nd day of August, 2016

S. OKONG’O

JUDGE

In the presence of

N/A for the Plaintiffs

Mr. Mahugo for the 1st, 2nd and 4thDefendants

N/A for the 3rd Defendant

John Court Assistant