1. Vide a chamber summons application brought under Order 8 Rule 3 of the Civil Procedure Rules dated 27th March 2025 and filed on 8th April 2025, the applicant seeks leave to amend his plaint as set out in the draft amended plaint; that the amended plaint be deemed to be properly filed upon payment of the requisite fees.
2. As can be discerned from the grounds on the face of the application and the averments contained in the affidavit sworn by Charles Duke Nyamweya, an advocate of the High Court on 27th March 2025 in support of the application, the application is premised on the grounds that it has become necessary to amend the plaint to include payment of Kshs 5,000,000 being the market value of the suit property; that the amendment will not alter the nature of the claim and will not prejudice the defendants/ respondents in any way as they will be at liberty to address the amendments.
3. The application is not opposed.
4. I have carefully considered the application, the affidavit in support and I find the issue for determination to be whether it the orders sought are merited.
5. Order 8 Rule 3 of the Civil Procedure Rules provides for amendment of pleadings with leave of court as follows: -
‘(1) Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings……......................................
Further, Order 8 rule 5 gives the court the general power to amend.
5(1) For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.’
6. The purpose of allowing amendment of pleadings is to enable the court determine the real issues in controversy between the parties once and for all. For the court to allow the amendment, it has to first consider the intent and purpose of the amendment and whether any prejudice will be suffered by the other party in dispute and whether prejudice if any can be compensated by way of costs.
7. The case of Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013] Eklr, set out the principles in amendment of pleadings as follows: -
“The law on amendment of pleading in terms of section 100 of the Civil Procedure Act and Order VIA rule 3 of the repealed Civil Procedure Rules under which the application was brought was summarized by this Court, quoting from Bullen and Leake & Jacob’s Precedents of Pleading - 12th Edition, in the case of Joseph Ochieng & 2 others vs. First National Bank of Chicago, Civil Appeal No. 149 of 1991 as follows: -
“The ratio that emerges out of what was quoted from the said book is that powers of the court to allow amendment is to determine the true, substantive merits of the case; amendments should be timeously applied for; power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages); that as a general rule, however late, the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side; that the proposed amendment must not be immaterial or useless or merely technical; that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it
would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action; that the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on Limitation Acts.”
8. The principles set out in the above cited decision are summarised as follows;
i) That the amendment should not introduce new or inconsistent cause of actions or issues;
ii) The amendment should be made timeously;
iii) That the amendment should not affect any vested interest or accrued legal right;
iv) That the amendment should not prejudice or cause injustice to the other party.
9. The proposed amendment sought by the plaintiff/ applicant to include payment of Kshs 5,000,000 being the market value of the suit property is an alternative prayer to eviction of the 2nd defendant and/or an order revoking registration and title issued to the 2nd defendant. In my humble view, the proposed amendment will not alter the nature of the claim and l do not see how the defendants/ respondents will be prejudiced if the proposed amendment is allowed.
10. Consequently, I find that the application dated 27th March 2025 merited and I allow prayers 1 and 2 in the application. I make no orders on costs as the application was not defended.
Dated, signed and delivered virtually at Iten this 5th June, 2025.
Ruling delivered virtually in the absence of:
Ms. Chepkwong holding brief for Mr. Nyamweya for the Plaintiff/ Applicant
Mr. Mukhabane for the 1st Defendant/Respondent
Mr. Wanyonyi holding brief for Mr. Mwainamu for the 2nd Defendant/ Respondent
N/A for the 3rd Defendant/ Respondent
Court Assistant: Christine