JUSTUS MURIUKI, GEOFFREY MURAGE, JOSEPH KINYUA, PETER NYAGA, EDWARD NJERU, JACKTON NYAGA & SIMEON KITHINJI v STEPHEN MURIITHI MUGWIMI & JAMES KARIUKI MUGWIMI [2010] KEHC 3721 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

Civil Case 39 of 2008

JUSTUS MURIUKI………………………………1ST PLAINTIFF/RESPONDENT

GEOFFREY MURAGE…………………………2ND PLAINTIFF/RESPONDENT

JOSEPH KINYUA………………………………3RD PLAINTIFF/RESPONDENT

PETER NYAGA………………………………….4TH PLAINTIFF/RESPONDENT

EDWARD NJERU……………………………….5TH PLAINTIFF/RESPONDENT

JACKTON NYAGA………………………………6TH PLAINTIFF/RESPONDENT

HAMTON MUCHANGI………………………..7TH PLAINTIFF/RESPONDENT

SIMEON KITHINJI…………………………….8TH PLAINTIFF/RESPONDENT

VERSUS

STEPHEN MURIITHI MUGWIMI……………………………1ST DEFENDANT

JAMES KARIUKI MUGWIMI………………………………….2ND DEFENDANT

R U L I N G

The application before me is the one dated 28th July 2009. Mr. Kariithi for the applicant seeks leave to file a further amended plaint. He has another prayer that the court causes an entry on the record that the 1st plaintiff is dead.

The application is opposed strongly by both counsel for the respondents save for the first prayer for the entry that the plaintiff is dead. I will allow prayer (a) for whatever it is worth.

I have considered the rest of the application, the 3 grounds on its face and the rival affidavits herein. I agree with both counsel that the application is brought under the wrong provisions of the law as it is pegged on Order VI A Rule 1 which deals with Applications for amendment without the leave of the court. It ought to have been brought under Order VI A Rule 3 (1) of the Civil Procedure Rules.

A previous application for amendment was disallowed and the draft amended defence struck out on 30/6/2009. One of the reasons I struck out the said Amended plaint was the non-compliance with Order VIA Rule 7 (2). Mr. Kariithi has now repeated the same mistake. He has filed a draft further amended defence which does not show the amendments made earlier. I do not intend to repeat the contents of my earlier ruling on the subject. Mr. Kariithi can easily refer to the same. The only difference in the instant application is that this time, he has underlined the intended amendments in green colour. The Green or any other colour should nonetheless come after the underlining or striking out the initial amendments or deletions in red.    The draft further amended plaint has no relationship whatsoever with the amended plaint which it seeks to amend further. All amendments after the first plaint must be brought on board in the draft amended plaint and that is why the rules even provides for the further amendments to be done in a colour other than red.

Mr. Kariithi totally ignored my observations in the earlier ruling. It disappoints me to do the same thing all over again but I must dismiss this application save for prayer (a). The same is therefore dismissed with costs once again to counsel for the 2 Respondents.

W. KARANJA

JUDGE

Delivered, signed and dated at Embu this 2nd day of March 2010.

In presence of:-All counsel herein.