Stratogen Limited v County Government of Kisii

e. 4. The application is in the interest of justice and the plaintiff's commercial interest and the defendant will suffer no injustice of hardship if it's allowed. The application was accompanied by an affidavit signed and sworn by the applicants' advocate, who averred that he served the defendant with the amended plaint, which the defendant had not replied to or even filed a statement of defense against. Defendants’ response 5. In their replying affidavit by Mokaya John Momanyi an advocate representing the defendant herein, he states that this application is incompetent and an abuse of the court process and that they filed their statement of defense annexed herein dated 20.4.2021 and that the applicant herein also filed their response to the statement of defence dated 16.9.2021 and so the averments that the respondent has not filed any defense is misleading and untrue. He further contends that the respondent is under no legal obligation to file an amended defense and they would rely on their defense dated 20.4.2021 and he prays this application be dismissed with costs. Issues for determination 6. Having considered the application herein, the supporting affidavit, the respondent's response, and the annexures, it is my view that the issue for determination is; Whether the application meets the threshold for entry of default judgment. Analysis Whether application meets the threshold for entry of default judgment. 7. 8. The applicant seeks that judgment be entered for it against the respondent on the grounds that the responded did not file an amended defence. In the original plaint dated 15.2.2021, the applicant sought; a. Kshs 36,300,000/= general damages for breach of contract, costs and interests. In the Amended plaint, b. Ksh. 36,300,000/= and Kshs. 37,788,550/= being compounded monthly interest on the said Kshs 36,300,000/= for the period 18.9.2019 to 14.3.2025 at Central Bank lending rates. c. Payment of 14 % per annum on (a) and (b) above from 14.3.25 till the date of the decree. d. Payment of 14 % per annum on the aggregate sum so adjudged under prayers (a), (b) and (c) from the date of the decree till; payment in full. g. Damages for loss of expectation or reliance loss, h. Costs of the suit and interest from the date of filling of the suit. The defendant in response argued that it has filed a defence dated 23.4.2021 on record. I have seen the said defence in which it denied the contract, liability to pay any sum and put the applicant /plaintiff to strict proof of all the material allegations in the plant. Order 8 rule 1 of the civil procedure rules provides that(1) A party may, without the leave of the court, amend any of his pleadings once at any time before the pleadings are closed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19723/eng@2025-07-02 2

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(2) (3) Where an amended plaint is served on a defendant— (a) if he has already filed a defence, the defendant may amend his defence; and (b) the defence or amended defence shall be filed either as provided by these rules for the filing of the defence or fourteen days after the service of the amended plaint whichever is later. Where an amended defence is served on a plaintiff— (a) if the plaintiff has already served a reply on that defendant, he may amend his reply; and (b) the period for service of his reply or amended reply is fourteen days after the service on him of the amended defence. (4) References in subrule (2) and (3) to a defence and a reply include references to a counterclaim and a defence to counterclaim respectively. (5) Where an amended counterclaim is served on a party (other than the plaintiff) against whom the counterclaim is made, subrule (2) shall apply as if the counterclaim were a statement of claim and as if the party by whom the counterclaim is made were the plaintiff and the party against whom it is made were a defendant. (6) Where a party has pleaded to a pleading which is subsequently amended and served on him under subrule (1), then, if that party does not amend his pleading under the foregoing provisions of this rule, he shall be taken to rely on it in answer to the amended pleading, and Order 2 rule 12(2) shall have effect at the expiry of the period within which the pleading could have been amended. 9. My understanding of Order 8 Rule 1 (2) (a) is that where a party has been served with a defence he has a choice on whether to file an amended defence or not. It is clear that the defendant opted not to file an amended defence. Order 8 rule 1 (6) provides that where an amended defence or pleading has been served upon a party but he does not respond to it, he shall be taken to rely on the pleadings previously filed in response to the one which has been amended. The principal sum herein is Kshs. 36,300,000/ = and this is the sum on which the applicant seeks interest to run on in the amended plaint. Since the said principal sum has been denied and thus the issue of that sum and the subsequent prayers pegged on it are matters for full trial. 10. From the foregoing, I find that the application is devoid of merit and the same is dismissed with costs to the respondent/ defendant. Hearing on 17.11.25. Hearing notice to issue. 11. It is hereby ordered. DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 2ND DAY OF JULY 2025. IN THE PRESENCE OF: T.A. ODERA JUDGE 2. 7.25 Miss Mwikamba holding brief for Mr. Gachuba for the Plaintiffs/Applicant N/A for Respondent Court Assistant - Kipchirchir https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19723/eng@2025-07-02 3

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