Registered Trustees Church of God in East Africa (K) v Fredrick Maengwe Matara & 8 Others [2013] KEHC 955 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

H.C.C. NO. 13 OF 2012.

THE REGISTERED TRUSTEES CHURCH…………..PLAINTFFS

OF GOD IN EAST AFRICA (K)

-VERSUS-

FREDRICK MAENGWE MATARA

& 8 OTHERS………………………………………… DEFENDANTS

R U L I N G.

The Plaintiff/Applicant filed the Notice of Motion dated 30. 8.2013 through  M/S. Staussi & Asuna Advocates for leave to amend the plaint  dated 18. 02. 2012. The  copy of the annexed draft amended plaint, shows that the plaintiff will change  from the  ‘’Registered Trustees Church of God in East Africa (K)’’ to ‘’The Executive  Council , Church  of God in East Africa (K) (Suing for and on behalf  of the General Assembly of the Church of God in East Africa).’’ The application is based on 14 grounds on the  application and the supporting affidavit by Reverend Geoffrey S. Anjela, sworn on 30. 08. 2013.

The application is opposed by the Defendants who filed grounds of opposition dated 4. 9.2013 setting out six grounds filed through M/S. Gabriel Fwaya Advocates.

M/S. Asuna and  Mr. Fwaya for the Applicant and Respondents  made verbal submissions in support and opposition of the application during the hearing on 9. 10. 2013. The court has carefully considered the grounds set out  in the application the supporting affidavit, grounds of opposition and the submissions by both counsel and find as follows;-

That on 24. 07. 2013, the court directed the plaintiff to file and serve their intended application for leave to amend the plaint in 21 days.

That the period  of 21 days  from 24. 07. 2013 lapsed on or about 14. 08. 2013, which  clearly  shows  by the time the application dated 30. 8.2013  was filed on 2. 9.2013 the period  within which to file it given on 24. 07. 2013 had long lapsed.

That the plaintiff  did not seek the extension  of time within which to file the application before filing the application dated 30. 08. 2013 and this  court has to consider  whether the application  is therefore  incompetent.

That  Order 8 Rule  3 of the Civil Procedure  Rule and all the other Legal provisions  cited by the Applicant  in the heading  of the application, allows  this court to allow amendments  of pleadings at any stage of proceedings, so long as  allowing such amendment will do justice.  Article 159 (2)  (d)  of the Constitution obligates  this court to be guided by the Principles of doing justice without regard to procedural  technicalities.

That courts have over time in various cases, allowed  amendments  of pleadings in almost all instances except where such an amendment would result  to an injustice or prejudice to the other party. See  Samuel Oywa Wayuga –vs-The Trustees of the Church of Province of Kenya South Nyanza Province Kisii H.C.C.C. No. 4 of 2004, Roberty OmbasoNyarebu & Another –vs- Beldina MokayaKisumu C.A.C.A No. 200 of 2011.

That even if the Plaintiff’s application was to be declared incompetent merely because  of being filed outside the 21 days granted  by the court  on 24. 7.2013, the Plaintiff would still have the option of seeking fresh  leave through  another application. This would result to unnecessary delay and expenses to both parties  and for that reason the application will be looked into favorably.

That there is nothing before this court to show or suggest that the Defendants would prejudiced or exposed to any  injustice if the application was allowed. The additional costs the Defendants would probably incur, including filing of the amended plaint, would be easily catered for by an award of costs.

For reasons shown above, the application dated 30. 8.2013 is allowed in the following terms:

The Plaintiff/Applicant granted  leave to file and serve amended plaint  in 14 days.

That  the Defendants/Respondents to file and serve  amended defence  in 14 days  after service.

The Plaintiffs/Applicants to meet the Defendants’/Respondents’ costs of this application including costs for filing the amended defence.

S. M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON  27TH DAY OF NOVEMBER, 2013 AT BUSIA.

IN THE PRESENCE OF ;