https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8597

Talwar (Suing as the administrator of the Estate of the Late Inderjit Amarnath Gianchand Talwar) v Metropolitan International Holdings (Pty) Limited & 6 others (Civil Suit E371 of 2025) [2026] KEHC 8597 (KLR) (Commercial and Tax) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8597 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Suit E371 of 2025 FG Mugambi, J June 19, 2026 Between Vishisht Inderjit Talwar (Suing as the administrator of the Estate Of The Late Inderjit Amarnath Gianchand Talwar) Plaintiff and Metropolitan International Holdings (Pty) Limited 1st Defendant Goodison Twenty Five Ltd 2nd Defendant Gareto Investment Trust Limited (Kenya) 3rd Defendant and Coulson Harney LLP 1st Interested Party Sbm Bank Kenya Limited 2nd Interested Party Cannon General Insurance (K) Limited 3rd Interested Party Cannon Life (K) Assurance Limited 4th Interested Party Ruling Background and introduction 1.This ruling relates first, to the Notice of Preliminary Objection dated 5th November 2025 raised by the 1st defendant on the ground that the Amended Plaint dated 12th August 2025 has been filed irregularly after close of pleadings without the requisite leave of the Court contrary to Order 8, Rule 1 & 3 of the Civil Procedure Rules, 2010. I have read the written submissions from the 1st defendant in support and those filed by the plaintiff in opposition to the preliminary objection. Analysis and Determination 2.The plaintiff submits that the preliminary objection does not meet the legal threshold as it is premised on factual matters which cannot be resolved without evidence. The governing principle on threshold was well articulated in Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors, [1969] EA 696, that a preliminary objection must be founded on a pure point of law which has been pleaded or which arises by clear implication out of pleadings, and is capable of disposing of the suit if upheld. 3.In the issue at hand, the relevant documents, including the details of filing, form part of the official Court record and are therefore presumed to be authentic and accurate representations of the pleadings and filings made by the parties. As such, they require no further evidentiary proof unless specifically challenged, which is not the case here, and are accordingly amenable to judicial notice. The preliminary objection is therefore properly framed and ripe for determination. 4.Turning to the substance of the objection, the governing provision is Order 8, Rules 1 and 3 of the Civil Procedure Rules, which provides 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. 2.Where an amended defence is served on a plaintiff—(a)if the plaintiff has already served a reply on that defendant, he may amend his reply; and(b)the period for service of his reply or amended reply is fourteen days after the service on him of the amended defence.” 5.On the question of when pleadings are deemed to have closed, Rule 3 provides useful guidance. Where an amended defence is served upon a plaintiff, the plaintiff retains the right to file a reply for the first time or, where one has already been filed, to amend it. In either case, the plaintiff has a window of 14 days from the date of service of the amended defence within which to exercise this right. Thereafter pleadings are deemed to have closed and any further amendments are made with leave of the Court. 6.The sole question for determination is whether the Amended Plaint filed on 12th August 2025 was filed before the close of pleadings, so as to bring it within the plaintiff's automatic right of amendment under Order 8, Rule 1. To resolve this question, it is necessary to identify two things: first, the trigger event from which the 14-day period for the close of pleadings began running and second, the precise date on which pleadings closed. 7.As stated, pleadings are deemed to have closed upon the expiry of the period allowed for the filing of a reply. Where multiple defences are filed by different parties, it is the last defence served upon the plaintiff that triggers the running of the 14-day window within which the plaintiff may file or amend a reply. This is because a plaintiff is entitled to respond to each defence served upon them, and it would be procedurally unfair to deem pleadings closed before the plaintiff has had the opportunity to respond to all defences filed against them. 8.In this matter, three separate defences were filed by different defendants and interested parties. The last of these was the defence of the 4th interested party, filed on 16th July 2025. It is this filing that is of greatest significance for the purposes of determining when pleadings closed. Upon service of the 4th interested party's defence, the plaintiff was afforded a period of 14 days within which to file a reply. That 14-day window would have expired on 30th July 2025. Notably, the plaintiff did in fact file a reply to the 4th interested party's defence on 29th July 2025, that is, one day before the expiry of the 14-day window. 9.The filing of that reply on 29th July 2025 marked the effective close of pleadings in this matter, as it was the last pleading filed within the prescribed period. At the very latest, pleadings closed on 30th July 2025, being the last day of the 14-day window following service of the 4th Interested party's defence. The Amended Plaint was filed on 12th August 2025, that is, 13 days after the plaintiff filed its reply and 13 days after pleadings had effectively closed. By that date, the plaintiff's right to amend their pleadings as of right had long since lapsed. The plaintiff's position that the filing was within time is therefore unsustainable. 10.That said, I am equally alive to the fact that procedural rules are handmaidens of justice and not its mistress. The primary purpose of requiring leave to amend after the close of pleadings is to protect the opposing party from surprise and prejudice, and to ensure that the Court retains oversight over any material changes to the pleadings. Crucially, this matter has not yet been certified ready for hearing. The Amended Plaint was therefore filed at a relatively early stage of the proceedings. In the circumstances, the prejudice is considerably diminished, and I find that no irreversible prejudice would be occasioned to any of the opposing parties. 11.In the premises, I am of the considered view that the just and equitable course of action is not to strike out the Amended Plaint, but rather to exercise this Court's discretion to regularize it, in tandem with the overriding objective of the Civil Procedure Rules. Accordingly, the Amended Plaint dated and filed on 12th August 2025 is hereby deemed to be properly on record. 12.The opposing parties shall have 14 days from the date of this ruling within which to file amended defences in response to the amended plaint, should they wish to do so. On the question of costs, and bearing in mind that the plaintiff's procedural non-compliance necessitated the bringing of this application, I order that the costs of the application shall be borne by the plaintiff in any event. Application dated 27th June 2025 13.This application was brought by the 2nd and 3rd defendants together with the 3rd interested party (collectively, "the applicants"), seeking to have the suit struck out and dismissed. The applicants contend that the suit is founded on illegal and immoral actions and is therefore unsustainable. In support of this position, they cited a range of alleged wrongdoing, on the part of the plaintiff/respondent including falsification of documents, fraudulent claims, and false testimonies. They further relied on a ruling delivered in ELCC E065 of 2022, arguing that the findings therein constituted evidence of the fraudulent conduct underlying this suit. 14.The application was supported by the affidavits of Betty Kanyigia and the applicants' written submissions. It was opposed through the affidavits of Vishisht Inderjit Talwar, supported by submissions filed on behalf of the respondent. Analysis and Determination 15.The principal question for determination is whether the applicants have established sufficient grounds for the striking out and dismissal of the suit. To answer this question, it is necessary to briefly consider the legal framework governing the power to strike out pleadings. Order 2 Rule 15 of the Civil Procedure Rules confers upon the court the power to strike out pleadings at any stage of the proceedings where a pleading discloses no reasonable cause of action or defence in law; is scandalous, frivolous, or vexatious; may prejudice, embarrass, or delay the fair trial of the action; or is otherwise an abuse of the process of the court. 16.The principles governing the exercise of this power were otherwise authoritatively stated by the Court of Appeal in Yaya Towers Limited V Trade Bank Limited (In Liquidation), CA No. 35 of 2000. The Court held as follows:“A plaintiff is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial...It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved...” 17.This approach was similarly affirmed in DT Dobie & Company (K) Ltd V Muchina, [1982] KLR 1 where the court held that:“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it. The rationale for this is due to a realization that the exercise of the powers for summary procedure are draconian, coercive and drastic.And because a party may thereby be deprived of his right to a plenary trial, the court exercises those powers with the greatest care and circumspection and only in the clearest of cases as regards the facts and the law. The summary procedure should therefore only be adopted when it can be clearly seen that a claim or case is clear and beyond doubt unarguable and the judicial system would never permit a party to be driven from the judgment seat without any court having considered his right to be heard, except in cases where the cause of action was obviously and almost incontestably bad.” 18.Turning to the matter at hand, I have carefully considered the amended plaint and the statements filed in defence of the claim. It is apparent that several substantive issues arise for determination, among them, the basis upon which the Escrow Agreement was entered into; whether there exist any vitiating circumstances affecting that Agreement; the nature of the contractual arrangement, if any, between the parties; the specific duties owed by each party; and whether any breach has occurred. Both parties have addressed these issues at length in their respective submissions. 19.At this interlocutory stage, however, it would be premature to make any definitive findings. The court's inquiry at this juncture is necessarily limited in scope, and whether the respondent can substantiate its claim is a matter properly reserved for a full trial. I therefore decline the invitation to pronounce myself on the merits of the dispute at this point and equally decline to exercise a draconian step of striking out the suit as I am not satisfied that it falls under the headings anticipated by Order 2 Rule 15. Should the Court find, as alleged, that there are any illegalities underlying the contractual relationship between the parties, appropriate remedies can be ordered after affording all parties a fair opportunity to be heard. Disposition and Final Orders 20.For the foregoing reasons, the application dated 27th June 2025 is dismissed albeit with no orders as to costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE 2026.F. MUGAMBIJUDGEDelivered in presence of:Ms Salim for the plaintiffMs Athman for Munyu for 1st defendantMs Gathimba for Ms Mwongo for 1st IPOtieno for Oyatsi for 2-7 defendantsCourt Assistants: Lillian & Gloria