Muriithi & 2 others (Suing in His Capacity as the Administrator of the Estate of the Late Joseph Maingi Muriithi) v Karungo & 3 others; Muriithi & 122 others (Interested Parties) (Environment and Land Case Civil Suit 7 of 2012 & Environment & Land Case 814 & 430 of 2013 & 256 of 2021 (Consolidated)) [2024] KEELC 5721 (KLR)

The Applicant had obtained leave to amend its Plaint; upon service, adverse parties automatically accrued a corresponding right to amend their defence and counterclaim. That right is conferred by Order 8 Rule 1(2) of the Civil Procedure Rules and reinforced by the court's orders of 19th April 2023, which were never reviewed or set aside. Striking out the amended pleading would therefore amount to an impermissible appellate review of a coordinate court's orders.

The Respondent's Replying Affidavit explained that the impugned paragraphs merely responded to allegations in the Amended Plaint and traced the factual history of ownership of the suit properties. The Applicant filed no Further Affidavit to controvert these averments, so they are deemed admitted. Further, factual controversy cannot be interrogated summarily via an interlocutory application.

The Applicant conceded it consented to the joinder application which culminated in the amendment. Since no draft Amended Plaint was on file when leave was granted, the liberty to amend was unrestricted. Having participated in the proceedings leading to the consent orders, the Applicant cannot now seek to strike out the Amended Plaint when those orders have not been reviewed or discharged.

The Applicant itself first sought and obtained leave to amend, thereby conferring on adverse parties the right to respond. The application to strike out the response was filed about four months after the Amended Defence (31st October 2023 to 6th March 2024), an unexplained and inordinate delay pointing to lack of bona fides and an intent to delay a dispute dating back to 2012.