Ramniklal Jivraj Memchand Shah & 1 other v Middle East Bank Limited

5. The Defendant/Applicant filed a Further Affidavit 28/03/2025 by Felix Nganga Karanja, the advocate having the conduct of this matter on behalf of the Defendant. He stated that the only Amended Plaint served upon their firm was the one dated 18/06/2024 and that at no stage was the firm served with any Amended Plaint dated 11/12/2024. 6. That they are also not aware of any extension of time being given for filing of the Amended Plaint on 16/10/2024. That it was on receipt of the Amended Plaint on 19/06/2024 that the firm made an application to strike it. 7. The Application was canvassed by way of written submissions. Both parties complied by filing their rival submissions, which I have perused through. Analysis 8. This court has perused through the application, supporting affidavit, filed submissions and the responses thereto. The issues for determination are: a. Whether the Amended Plaint should be struck out b. Who should bear costs 9. I have perused through the court proceedings. On 25/07/2023, the Plaintiff was directed to file an application seeking to amend the Plaint within 21 days. On 17/10/2023, the counsel for the Plaintiff submitted that the was unwell and did not comply with the timelines. The application had been served upon the Defendant. 10. The application was allowed by consent on 11/04/2024. On 19/06/2024, the counsel for the Applicant stated that he had filed the Amended Plaint dated 18/06/2024 but had not served it upon the Respondent. The court directed that the same be served upon the Defendant. On 16/10/2024, the court was informed that the Amended Plaint was yet to be served and a further mention date given for 16/12/2024. 11. On 16/12/2024, the defence counsel informed the court that the application subject to this ruling was filed and it was directed that the application be served. 12. It is a fact that the Plaintiff did not file the Amended Plaint within the timelines given. The Plaintiff’s counsel states that the Amended Plaint dated 18/06/2024 was not served upon the Defendant but the Amended Plaint dated 11/12/2024. 13. From the proceedings for 16/10/2024, Mr. Karanja Advocate appeared for the Plaintiff while Mr. Jengo Advocate held brief for Mr. Obura Advocate for the Plaintiff. Mr Karanja stated as here under; “ The Amended Plaint has not been filed and served. Mr. Obura has a medical issue. We can give him time.” 14. From the above, the counsel for the Plaintiff admits that they had not received any Amended Plaint from the Plaintiff. He acknowledged that the counsel for the Plaintiff has been unwell and he stated that the Plaintiff can be given more time. Further mention was given for 16/12/2024, and on the said date, Mr. Obura informed the court that he had served the Amended Plaint together with the list of documents. 15. The averment by the counsel for the Defendant that only the Amended Plaint dated 19/06/2024 was served upon them contradicts the recorded proceedings for 16/10/2024. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12344/eng@2025-07-31 2

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16. The issue is whether the admission of the Amended Plaint would be prejudicial to the Defendant. The Defendant had no objection to have the amended Plaint filed. The issue was that the Plaintiff filed the Amended Plaint outside the given timelines, and the Amended Plaint on record was filed out of time and without leave of court. 17. As stated herein above, the delay was due to the illness of the Plaintiff’s advocate, a fact admitted by the counsel for the Defendant. It is also on record that on 17/10/2023. Mr. Obura stated that he had not complied with the court’s directions as he had been unwell. 18. Though there was delay on the part of the Plaintiff’s counsel, the errors of an advocate should not be visited upon the party. In the case of Lucy Bosire v Kehancha Div Land Dispute Tribunal & 2 others [2013] eKLR, the Court held that mistakes of Advocates, should not be visited on their clients when the situation can be remedied by costs. 19. I note that there are two Amended Plaints on record. For purposes of order, the Amended Plaint dated 18/06/2024 is expunged from the court records. The Amended Plaint dated 11/12/2024 is deemed to be properly on record and the same be served upon the Defendant within 7 days from this ruling. 20. On costs, the same follows the event. Considering that there was delay on the part of the Plaintiff, I exercise the discretion of the court and direct that each party to bear its own costs. 21. The upshot of the foregoing is that the court renders itself as hereunder: a. The Notice of Motion Application dated 01/07/2024 has no merits and is hereby dismissed. b. The Amended Plaint dated 11/12/2024 be served upon the Defendant within the next 7 days. c. Parties to comply with Order 11 of the Civil Procedure Rules within the next 45 days. d. Each party to bear its own costs. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA THIS 31ST DAY OF JULY, 2025. ……………………… HON. F. WANGARI JUDGE In the presence of; Mr. Obura Advocate for the Plaintiff/ Applicant Mr. Karanja Advocate for the Defendant/ Respondent Ms. Norah, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12344/eng@2025-07-31 3

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