|Civil Case 35 of 2009
|JOEL SIMEKA ONYANGO v ANNA NYABONYI NYANG’WARA & PETER MIYIENDA
|31 Mar 2011
|High Court at Kisii
|Milton Stephen Asike-Makhandia
|JOEL SIMEKA ONYANGO v ANNA NYABONYI NYANG’WARA & another  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL CASE NO. 35 OF 2009
PETER MIYIENDA...........................................................................................2ND DEFENDANT
The grounds in support of the application which incidentally is mounted by the 1st defendant is that, the interlocutory judgment entered against her and in favour of the plaintiff in this suit was irregular, null and void as it contravened the mandatory Provisions of Order V rules 9(1) , 12 and 13 of the Civil Procedure rules. The interlocutory judgment was based on a fictitious service alleged to have been effected upon her when no such service was ever undertaken. It was entered when there was proper memorandum of appearance and defence on record. Accordingly, there is an apparent error on the face of the record. The 1st defendant had a strong and plausible defence against the plaintiff’s claim, and it was therefore in the interest of justice that she is afforded opportunity to be heard on the defence and the case determined on merits. The plaintiff would not suffer any prejudice if the application was allowed. Otherwise it was contrary to the dictates of Natural justice to deprive a litigant a hearing, more so, when such litigant is desirous of being heard. The 1st defendant was willing to abide by any conditions that the court may impose when allowing the application and finally, that the application, had been made timeously, in good faith and with due promptitude.
In response to the application, the plaintiff filed a replying affidavit in which he deponed where relevant that the application was incompetent, bad in law and ought to be struck out, the interlocutory judgment was properly entered, the amended plaint had been served on the 1st defendant on 29th July, 2009 and her then advocates on record on 10th August, 2009. Therefore the 1st defendant’s claim that neither her nor her advocates were served with the amended plaint were false, malicious and calculated to delay the cause of justice and abuse of the due process of court. The application had been brought more than one year and four months after the period limited for filing amended defence. Such delay was inordinate.
When the application came up before me for plenary hearing on 3rd November, 2010, Mr. Otieno for the 1st defendant and Mr. Ombachi for the plaintiff, both learned counsel consented to canvassing the application by way of written submissions. They subsequently filed and exchanged the same. I have carefully read and considered them.
Applying the above considerations to the circumstances of this case, I have no doubt at all in my mind that, the interlocutory judgment impugned was irregularly entered and must be set aside ex debito justitiae (as a matter of right). I am not doing so in the exercise of my unfettered discretion but as a matter of judicial duty in order to uphold the integrity of the judicial process itself. The conduct of an advocate who looks the judge in the eye and makes submissions which find no support from the court record and the law must be deprecated in very strong terms. The law is very clear that not every amendment of a pleading must attract a corresponding amendment of the opposing pleading. There are occasions when a plaint is amended to correct minor details such as names of the parties, dates, time and or figures in a claim. Ordinarily such amendment would not attract amendments of the defence. At times there may be major amendments to the plaint but the defendants may feel content with the defence on record. In such a situation it will not be necessary for the defendant to amend his defence to be in tanden with the amended plaint. Counsel for the plaintiff apparently does not seem to appreciate this obvious and basic legal positions. He seems to come from the school which holds that every amendment of a pleading must be met with a corresponding amendment to the opposing pleading. Nothing can be further from truth. Otherwise what explanation can he possibly have for amending the plaint and having it served on the defendants and though the 1st defendant had a defence on record that was an answer to the initial plaint, the plaintiff at the expiry of the time allowed for service of plaint applied for interlocutory judgment. There having been a defence on record by the 1st defendant, the plaintiff had no basis to seek and obtain an interlocutory judgment in default of amended defence to the amended plaint. The 1st defendant having had a defence on record and having not elected to amend the same upon the lapse of fourteen days, of service of amended plaint the law assumes that the 1st defendant was then basing her defence on her earlier defence on record and not to be treated like someone who had not filed a statement of defence at all. Order VIA rule 1(6) of the Civil Procedure rules cannot be any clearer on the issue. It provides interlia:-
In any event, the order to amend made on 10th July, 2009 was optional and self-regulating. The court granted the plaintiff leave to amend his plaint and the defendants were also at liberty to amend their defences if they so chose. It was therefore not mandatory that the 1st defendant must of necessity amend her defence in the light of the amended plaint. As she already had a defence on record it was within her to determine whether to amend or not amend her defence. In any event there is no provision under the said order which allows a party to seek for interlocutory judgment in the event that the party served with amended pleading fails to amend corresponding pleading.
Ruling dated, signed and delivered at Kisii this 31st March, 2011.