1. I have considered the Notice of Motion Application dated 24th November, 2023 together with the affidavit in support sworn on even date and the replying affidavit sworn in opposition to the same on 16 February, 2024; the submissions of the parties; and the applicable law.
2. The application seeks to strike out the plaintiff's Amended Plaint dated 1st November, 2023 on the basis that the same was amended without leave of Court.
3. The applicant submitted that leave to amend, sought and granted, was limited to amending the Plaint to exclude the amount of Kenya Shillings Twelve Million and Five Hundred Thousand (Kshs. 12,500,000.00) following the entry of part judgment.
4. However, in contravention of the said limited orders, the plaintiff amended the Plaint and sought further prayers not originally included. Namely, it amended the purchase price; interest in the Plaint from KShs 79,667,946.70 to Kshs 229,307,395.83; and further amended the Plaint to include amounts relating to loss of user relating to the suit property in the sum of KShs 57,600,000/=.
5. Counsel submitted that the amendment ought not be allowed because the plaintiff would suffer prejudice arising from the said amendment. He argued that the case had substantially changed from the original pleadings and that submitted that the amendment had been made two years down the road, and without sufficient explanation.
6. In opposition to the application, the respondent submitted that the plaintiff had sought and been granted leave by the Deputy Registrar. Counsel submitted that the same was lawful, and was necessary, because the case had changed since the filing of the suit; and since the time that partial payment was made.
7. Finally, he contended that, in any event, the amendment arose out of the same facts giving rise to the cause of action, and that amendment was necessary to clarify the amounts in dispute, and in particular, to assess special damages. It was his view that the present application was no more than an effort on the part of the defendant to buy time and cause delay.
8. Having considered the submissions of the parties, Order 8 of the Civil Procedure Rules is the applicable law. The same provides for Amendment of Pleadings. Order 8 Rule 1 provides for amendment of pleadings without leave in the following terms:
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.
9. Further, Order 8 Rules 3(3) and 3(5) provide for amendment of pleadings with leave of the court. The same read as follows:
Order 8, rule 3 (3):
An amendment to correct the name of a party may be allowed under sub rule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.
Order 8, rule 3(5)
(5) An amendment may be allowed under subrule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.
10. Lastly, Order 8 Rule 5 provides the general powers to amend in the following terms:
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 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.
11. Looking at the record before me, neither party has attached a copy to the proceedings before the court, or a copy of the order in question, allowing the amendment. Accordingly, it is not clear what the specific terms of the said order was. It is not however in dispute that leave to amend was in fact granted. The question is on what terms, and to what extent?
12. In the circumstances, given that leave was in fact granted, the only question remaining is, whether or not undue prejudice with ensue to the defendant if the same allowed as amended?
13. Guided by the law as set out above, I am of the view that amendments, in general, ought to be allowed, so that the real dispute between the parties can be adjudicated upon, provided that any prejudice to the other party or parties caused by the amendment can be compensated for in costs, and the public interest in the efficient management of justice is not significantly harmed.
14. Based on the principle above, I do not think that at the present stage of the proceedings the defendant will be unduly prejudiced if the amendment is allowed, or that there will be a miscarriage of justice.
15. Accordingly, based on the reasons set out above, the amendment is allowed. The respondent, being the party seeking the amendment, shall bear the costs arising out of the amendment. The applicant (defendant) is granted leave to amend its pleadings, if need be, in reply to the same within 21 days from the date of this ruling.
16. The application is dismissed in accordance with the terms as set out above.