1.What is before Court for determination is the 1st Defendant’s Notice of Motion Application dated the August 30, 2022 brought pursuant to Order 2 Rule 15 and Order 51 of the Civil Procedure Rules. The 1st Defendant seeks the following orders:-
1.That this Honourable Court be pleased to strike out the Amended Plaint herein datedMarch 29, 2022.
2.That costs of this Application be awarded to the Applicant.
2.The Application is premised on the grounds on the face of it and the Supporting Affidavit of Dr David Hopcraft where he deposes that vide a Ruling was given by the Court on the Notice of Motion datedDecember 18, 2018, on March 21, 2022, the Plaintiff was allowed to file and serve an Amended Plaint within twenty one (21) days, which lapsed onApril 11, 2022. He contends that the Order ceased to take effect from April 11, 2022. He claims the Plaintiff filed its Amended Plaint 78 days out of time after inordinate delay and without the leave of court. Further, that failure to file and serve the Amended Plaint within time is contrary to a court order and an abuse of the court process. He insists that the delay by the Plaintiff has occasioned great prejudice to the Defendant. He reiterates that the Plaintiff has and continues to deliberately delay the hearing and determination of the suit.
3.The Plaintiff opposed the instant Application by filing a Replying Affidavit sworn by Anantharaman Ramamurthy it Managing Director where he deposes that the said Application is filed in bad faith and solely intended to cause an obstruction to a fair trial of the pending suit. He avers that the 1st Defendant’s allegations that the Plaintiff filed its Amended Plaint 78 days out of time in breach of the orders of the Court issued in its Ruling delivered on March 21, 2022, is baseless and incorrect because the Plaintiff filed its Amended Plaint timeously and within the timelines envisaged by the Court. He contends that as per the Ruling of the Court delivered on March 21, 2022, the Plaintiff was required to file its Amended Plaint within twenty one (21) days from the date of the Ruling, which it did on April 5, 2022. Further, that this was within fifteen (15) days from the date of the Ruling of the Court and thereby in conformity with the twenty one (21) days’ timeline stipulated by the Court. He explains that since the amendments in the Plaint had the effect of joining the 2nd, 3rd and 4th Defendants as parties to the suit, it was incumbent upon the Plaintiff to first obtain summons and serve the Amended Plaint together with the summons upon the 2nd, 3rd and 4th Defendants. Further, there was delay by Court in issuing summons to the Plaintiff which were then issued on July 20, 2022 after which the Plaintiff served the 2nd and 3rd Defendants. He reiterates that 1st Defendant’s allegations of late filing and service of the Amended Plaint 78 days out of time, is deliberately intended to mislead this Honourable Court into issuing unwarranted orders in its favour. He states that it is only on July 1, 2022 that the 1st Defendant wrote to the Plaintiff indicating that it had not been served with the Amended Plaint. Further, upon receipt of the letter, the Plaintiff’s Advocates immediately served the Amended Plaint on the 1st Defendant through email on the same date. He insists that the amendments that were effected were in respect to the added parties namely the 2nd, 3rd and 4th Defendants. Further, that after service, on July 5, 2022 the Plaintiff’s Advocates wrote to the 1st Defendant’s Advocates apologizing for the delay in service and explaining that the delay was as a result of the failure to obtain summons in good time. He reaffirms that under Article 159(2) (d) of the Constitution, it requires the Court, to exercise judicial authority, and administer justice without undue regard to procedural technicalities. Further, the Plaintiff cannot be faulted in any delay since issuance of summons is done by Court.
4.The Application was canvassed by way of written submissions.
Analysis and Determination
5.Upon consideration of the instant Notice of Motion Application including the respective Affidavits, annexures and rivalling submissions, the only issue for determination is whether the Amended Plaint dated the March 29, 2022should be struck off with costs.
6.The 1st Defendant in its submissions reiterates its averments as per the Supporting Affidavit and contends that Section 1A of the Civil Procedure Act requires a party to civil proceedings or an advocate for such a party, to assist the court and, to that effect, to participate in the processes of the court as well as comply with the directions including orders of the court. It avers that Article 159(2) of the Constitution is not a cure and a panacea for all manner of procedural lapses and blatant disregard of the law including orders of the court. Further, that the order to file and serve the Amended Plaint ceased to have effect from April 11, 2022. It insists that summons were not necessary to serve the 1st Defendant with the Amended Plaint. It further submits that there is no reasonable cause shown why the orders of this Honourable Court were not complied with.
7.The Plaintiff in its submissions relies on the averments in its Replying Affidavit and submits that pursuant to the impugned Ruling, on April 5, 2022it filed its Amended Plaint, which was within fifteen (15) days from the date of the said Ruling of the Court and thereby in conformity with the twenty one (21) days’ timeline stipulated by the Court. Further, that it was incumbent for it to first obtain summons and serve the Amended Plaint together with the summons upon the Defendants but there was delay in issuance of the said summons by the Court Registry. It argues that the amendments made do not change the averments earlier made against the 1st Defendant. Further, no new claims have been made against the 1st Defendant and apart from being served outside the twenty one (21) days period, no conceivable harm has been occasioned upon it. It further submitted that the power to strike out a pleading should be used very sparingly and only in cases where the pleading is shown to be clearly untenable. It avers that the 1st Defendant stands to suffer no prejudice on account of the late service. Further, that the hearing of the pending suit cannot commence until all Defendants have been properly served in accordance with the Civil Procedure Rules and granted an opportunity to file their respective Defences and Pre-trial Directions taken in the presence of all parties.
9.The legal provisions governing striking out of pleadings is contained in Order 2 Rule 15(1) of the Civil Procedure Rules, 2010 which stipulates that:
12.In this instance, I note the fulcrum of the dispute herein revolves around proprietary interest in land. The 1st Defendant contends that the Plaintiff filed its Amended Plaint dated the March 29, 2022, 78 days late contrary to the Court’s Ruling delivered on March 21, 2022 where it had been granted leave to file and serve it, within twenty one (21) days. It argued that the Court Order lapsed on April 11, 2022 and ceased to take effect from April 11, 2022 hence the Plaintiff’s failure to file and serve the Amended Plaint within time is an abuse of the court process. The Plaintiff on other hand insists that it filed its Amended Plaint on April 5, 2022, within fifteen (15) days from the date of the Ruling, which was within the timelines envisaged by the Court. The Plaintiff argues that since the amendments in the Plaint had the effect of joining the 2nd, 3rd and 4th Defendants as parties to the suit, it had to first obtain summons and thereafter serve the Amended Plaint together with the summons upon the 2nd, 3rd and 4th Defendants respectively. However, the Court delayed in issuing the summons and the same was only done on July 20, 2022 after which it served the 2nd and 3rd Defendants. It admits serving the 1st Defendant late and apologizing for the same.
13.On perusal of the Court record, I note the Plaintiff indeed filed its Amended Plaint on April 5, 2022. I further note that the Deputy Registrar for this Court indeed issued Summons to Enter Appearance for the 2nd, 3rd and 4th Defendants on July 19, 2022. I find that the 1st Defendant is not being candid by stating that the Amended Plaint was filed 78 days late. I opine that the late service of the Amended Plaint to the 1st Defendant cannot lead to the striking out of an already filed pleading which has raised triable issues. The 1st Defendant has not demonstrated what prejudice it suffered since the Amended Plaint was served upon its’ advocates late. Besides, it has not denied that the Plaintiff apologized for the late service.
15.Based on the facts as presented while relying on the legal provisions I have quoted as well as associating myself with the cited decisions, I will decline to strike out the Amended Plaint as sought by the 1st Defendant on the ground of late service as this is indeed a procedural technicality which it seeks to rely on. I opine that time can indeed be extended to serve the Amended Plaint.
16.It is against the foregoing I find the Notice of Motion Application dated the August 30, 2022unmerited and will dismiss it.Costs will be in the cause.