REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL SUIT NO. 220 OF 2001 TIMOTHY ODWORI MAKHOKA…………………….……PLAINTIFF =V E R S U S= 1.RAMA LUGU……………………………………….1ST DEFENDANT 2.SULEIMAN MONI CHARO……………………..2ND DEFENDANT RULING The Applicant filed his Plaint on June 2000. On 5/5/2000 the procedure rules had been altered and it became mandatory to always plead in a Plaint the matters now sought to be added. I am satisfied with the explanation given for noncompliance with the new rule. There is a difference between omitting to file a verifying affidavit and omitting to include material under Rule 7A(2) Civil Procedure Code. Furthermore, there is now a divided opinion in the High Court as to whether non-compliance with the new procedure (7A) makes a Plaint null and invalid. For my part I am of the view that rules of procedure should not be used to the prejudice of a litigant where a step can be taken to correct the error. I have considered the submissions of both counsel and the authorities submitted. I am inclined to allow the application which I hereby do. I grant the orders sought with costs to the Defendant. Dated at Mombasa this 12th day of February, 2004. JOYCE KHAMINWA JUDGE I also order the Amended Plaint be filed within 10 days from to-day. Defence may be amended within 15 days of service of Amended Plaint. JOYCE KHAMINWA JUDGE
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