INTRODUCTION
1. The Petitioner herein filed the Notice of motion dated 8th November, 2024 Application under Rules 18 and 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (also known as Mutunga Rules) seeking to be granted leave to amend the Notice of Motion Application and the Petition in accordance with the draft amendments annexed thereto to ensure clarity and precision in the relief sought. The Application is grounded on the ground set out on the face of the Application as well as the annexed supporting affidavit of DENNIS OMWAMBA MASENGE, the 4th Petitioners herein.
2. Mr. Omwamba averred that upon reviewing the pleadings, they identified the need to amend the notice of Motion to specify that the reliefs sought are conservatory orders pending the hearing and determination of both the Application and the substantive Petition.
3. He pleaded that the application had been filed without unreasonable delay and thus the same would not affect the timely and speedy conclusion of the case. He averred too that the amendment sought in the Application will not prejudice or cause any injustice to any of the parties in the suit which cannot properly be compensated by costs. He deposed that the Application to amend his pleadings on the basis of an error/mistake which is not fraudulent. He thus urged the court grant the Petitioners to amend the notice of Motion Application as set out in the attached draft of the amended pleadings.
4. In response to the Application the 1st, 3rd, 4th and 5th Respondents grounds of opposition wherein they claimed that the Application was frivolous misconceived and an abuse of the court process. They also claimed that the Application was filed as an afterthought given that the parties had argued the Application on merit and the court had given directions on the same.
5. This court the directed that Application be disposed of by way of written submissions. The Petition as well as the 1st, 3rd, 4th and 5th Respondents filed their submissions while the 2nd Petitioner who did not file any response to the Application failed his written submission.
DETERMINATION.
6. Having considered Application, the response thereto and the and the written submissions filed by the Parties in relation to the same, I deduce that the issue for determination whether appellant, has satisfied all the conditions for grant of leave to amend his petition as well as the notice of Motion Application.
7. The procedure for instituting, hearing and determination of constitutional petitions is governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. Rule 10(1) thereof provides that such applications shall be brought by way of a petition. Rule 18 of the rules provides for amendment of pleadings and it states: -
“18.A party that wishes to amend its pleadings at any stage of the proceedings may do so with the leave of the court.”
8. The procedure for bringing applications under the Rules is set out in Rule 19 which states: -
“19.A formal application under these rules shall be by Notice of Motion set out in Form D in the schedule and may be supported by an affidavit.”
9. The guiding principles in an application to amend pleadings were summarized in the case of St Patrick’s Hill School Limited v. Bank of Africa Kenya Limited [2018] eKLR as follows:
“21.A wider footage on the same issue was given in a more recent case of Ochieng & others v. First National Bank of Chicago Civil Appeal Number 147 of 1991 the Court of Appeal clearly set out the principles under which Courts may grant leave to amend the pleadings. The same is as follows:
a. The power of the Court to allow amendments is intended to determine the true substantive merits of the case
b. The amendments should be timeously applied for;
c. Power to amend can be exercised by the Court at any stage of the proceedings.
d. 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.
e. 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 limitations Act subject however to powers of the Court to still allow an amendment notwithstanding the expiry of the current period of limitation.”
10. Likewise, the Court in the case of Rogers Mogaka Mogusu v. George Onyango Oloo & 2 others [2014] eKLR noted as follows:
“14.… I am of the view that the ends of justice will be achieved and the principles and values enunciated in Chapter Six of the Constitution with better be served if the amendment is allowed and the issues in contest dealt with wholly. At this point, this Court is not concerned with the substantive merits of the Petitioner’s case as those are matters that will be canvassed at the hearing and I am therefore satisfied that the amendment will help the Court conclusively determine the issue before it and declining the amendment at this stage may only lead to the filing of another suit and such an approach would negate the principles of Judicial authority enunciated in Article 159(2) of the Constitution that all suits should be expeditiously determined.”
11. Prior to determining whether the applicants have met the conditions for grant of leave to amend both the Petition and the notice of Motion it is important to first and foremost determine the issue raised by the respondents that the Mutunga rules do not permit amendment of Notice of motions because the same are not pleadings. A clear look of the Mutunga rules it is outright the same do not define what amounts to a pleading.
12. The definition as to what amounts to a pleading is found under section 2 of the Civil Procedure Act which defines pleadings to include petition or summons, and the statements in writing of the claim or demand of any plaintiff, and of the defense of any defendant thereto, and of the reply of the plaintiff to any defence or counterclaim of a defendant but does not include what may be termed interlocutory applications including Chamber Summonses and Notices of Motion. Order 8 rule 3 of the Civil Procedure Rules, 2010, which are rules that originated from the civil Procedure act and which seem to inform the argument by the Respondents limits amendments to pleadings.
13. However under the same rules under Order 8 rule 5(1) which a replica of Section 100 of the civil procedure Act gives the court general power to either on 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 for the purpose of determining the real question in controversy between the parties, or correcting any error in any proceedings. It is evident from therefore that this court has power to order for an amendment to any document including an amendment to a notice of motion at any stage for purposes of determining the real question in controversy between the parties.
14. In Fredrick Mwangi nyaga v. Garam Investments & Another (2013) e KLR at page 5 and 6 Havelock J., stated:-
“with respect, I do not consider that learned counsel for the defendant has read the above provision entirely. The second sentence after the word “or” allows the correction of any defect or error in any proceedings. In my view, a Notice of Motion is part of the proceedings of a suit. I do not consider that the power to amend a proceeding is confined solely for the purposes of determining the real question of controversy between the parties. As a consequence, I agree with counsel for the Plaintiff when he says that this provision of Order 8 rule 5 allows this court to consider an application for amendment to (in this case), the plaintiff’s Notice of Motion dated 14th June, 2013. I believe that the decision in Echaria v. Echaria case (supra) is binding upon this court with the slight reservation that the application to amend the Notice of Motion before that Court was brought under the Court of appeal Rules.”
15. I associate myself with the sentiments of Havelock J and reiterate that in deed a notice of Motion Application can be amended.
16. Having stated as herein above I proceed to determine whether there is any reasonable cause for denying the amendment herein sought. The Petitioners herein aver that upon them reviewing their petition and the notice of Motion Application dated 14th August, 2024, they discovered that was a need to amend both the motion and the Petition to specify the relief sought were to be issued by this court pending the hearing of both the Application and the Petition. They contend that the application has been brought within a reasonable time as held in the case Kyalo v Bayusuf Brothers Ltd, Civil Appeal No. 38 of 1983 and therefore, will not affect the speedy and timely conclusion of the case. the Petitioners argued contended to this application to amend will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs as held in Tripat Singh Mangat (Suing on his behalf and on behalf of Mangat I,B. Patel (MIBP) Limited) v Manjeet Singh Bhachu & 3 others [2021] eKLR.
17. They submitted that the application to amend is on the basis of an error or mistake, which is not fraudulent as held in the case Balaji (EPZ) Limited v Nairobi City Water & Sewerage Company Limited (Civil Suit 258 of 2018) [2022] KEHC 11160 (KLR). Equally the argued that no prejudice will be occasioned to the Respondents if the amendments are granted, as they do not alter the substance of the Petition but instead enhance clarity and precision, ensuring the effectiveness of the conservatory orders sought.
18. The Respondent on the other hand claim that the Application is an afterthought given that the court had comprehensively determined the Notice of Motion Application. They also claim that the affidavit in support of the Application does relate to the Application for amendment.
19. Before dealing with the issue as to whether this court had dealt with the notice of motion conclusively and hence this Application is afterthought, it is important to point out that from the attached the proposed amendments are in both the Petition and the Notice Motion Application and not in the Notice motion alone. It therefore goes without saying that the leave to amend the petition is unchallenged.
20. On the claim that this court had determined the notice of motion substantively on merit, the proceedings of this court. Are clear that when the matter came up for Interpartes hearing of the Application, the Respondents who had filed a Preliminary objection to the Petition urged the court to have the same determined first and the court obliged. The petitioners through their advocate requested this court to give an order of maintenance of status quo pending the hearing and determination of the preliminary objection.
21. However the court noted that the Petitioners had not raised a substantive prayer for the same in their Application upon which an order of status quo could be granted and thus declined to grant the order of status and directed that the Preliminary objection be heard first.
22. The observation of the court that the Petitioner had not raised a substantive prayer for status quo in the Application to warrant grant of the same pending the hearing and determination of the preliminary objection as heard been prayed by their advocate amounted to a determination of the notice of motion substantively.
23. In the upshot, find that the argument that this Application is an afterthought unmerited because the court is yet to entertain the notice of motion Application on merit as alleged by the Respondents.
24. Regarding the claim by the respondents that the Affidavit in support of the Application being unrelated to it, I have seen the affidavit dated 8.11.24 attached to the application which is different from the supporting affidavit dated 14.8.24 . The instant application is thus supported by the affidavit davit dated 8.11.24 and thus the submissions that the application is not supported by an affidavit does not hold any water. .
25. Returning to the main issue as to whether Petitioners have met the conditions for grant of leave to amend their pleadings. As was observed in the case of Rogers Mogaka Mogusu v. George Onyango Oloo & 2 others [2014] which I have highlighted above the sole reason as to why a court should allow amendment is always to ensure that if such amendments allowed the same would help the Court to conclusively determine the issues before it and declining the said amendment at the preliminary stage may only lead to a party of another suit and such an approach would negate the principles of Judicial authority enunciated in Article 159(2) of the Constitution that all suits should be expeditiously determined. As I have pointed hereinabove, this court was in the course of this proceeding faced with a scenario whereby the Petitioner prayed for interim conservatory orders pending the hearing of the preliminary objection that the respondents and which this court. This court in its own observation without being moved by the respondents observed that it was incapable of issuing such an interim order pending the hearing of the of the Preliminary no such a substantive prayer in the Notice of motion.
26. Given that the Notice of Motion is yet to be heard on would be fair and Just to allow the Petitioner leave to amend their Notice of motion to include such a prayer to enable this court to make determination as to whether they are deserving of conservatory orders. The Respondents have not displayed any prejudice they would suffer that cannot be compensated by way damages if the Applicant is allowed to amend the Petition.
27. Having gone through all the proposed amendments on both the Petition and notice of motion Application, I find the same to be relevant to the real questions in controversy in the petition .
28. The above being the position I find merit in the Notice of Motion dated 5th November 2024 and I allow it with costs to the respondents .
DELIVERED VIRTUALLY IN THE PRESENCE OF
JOSHUA KEMBERO HB FOR MR ONGITI FOR PETITONER . NO APPEARANCE FOR THE RESPONDENTS
CA : OIGO
KEMBERO : We seek that the draft application be seemed as duly filed .
Order : granted.
T.A ODERA
JUDGE
30.1.25
Kembero : we seek conservatory orders sought in the application.
Order ; The application be served for directions on 3.2.25 at noon. .
1. The Petitioner herein filed the Notice of motion dated 8th November, 2024 Application under Rules 18 and 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (also known as Mutunga Rules) seeking to be granted leave to amend the Notice of Motion Application and the Petition in accordance with the draft amendments annexed thereto to ensure clarity and precision in the relief sought. The Application is grounded on the ground set out on the face of the Application as well as the annexed supporting affidavit of DENNIS OMWAMBA MASENGE, the 4th Petitioners herein.
2. Mr. Omwamba averred that upon reviewing the pleadings, they identified the need to amend the notice of Motion to specify that the reliefs sought are conservatory orders pending the hearing and determination of both the Application and the substantive Petition.
3. He pleaded that the application had been filed without unreasonable delay and thus the same would not affect the timely and speedy conclusion of the case. He averred too that the amendment sought in the Application will not prejudice or cause any injustice to any of the parties in the suit which cannot properly be compensated by costs. He deposed that the Application to amend his pleadings on the basis of an error/mistake which is not fraudulent. He thus urged the court grant the Petitioners to amend the notice of Motion Application as set out in the attached draft of the amended pleadings.
4. In response to the Application the 1st, 3rd, 4th and 5th Respondents grounds of opposition wherein they claimed that the Application was frivolous misconceived and an abuse of the court process. They also claimed that the Application was filed as an afterthought given that the parties had argued the Application on merit and the court had given directions on the same.
5. This court the directed that Application be disposed of by way of written submissions. The Petition as well as the 1st, 3rd, 4th and 5th Respondents filed their submissions while the 2nd Petitioner who did not file any response to the Application failed his written submission.
DETERMINATION.
6. Having considered Application, the response thereto and the and the written submissions filed by the Parties in relation to the same, I deduce that the issue for determination whether appellant, has satisfied all the conditions for grant of leave to amend his petition as well as the notice of Motion Application.
7. The procedure for instituting, hearing and determination of constitutional petitions is governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. Rule 10(1) thereof provides that such applications shall be brought by way of a petition. Rule 18 of the rules provides for amendment of pleadings and it states: -
“18.A party that wishes to amend its pleadings at any stage of the proceedings may do so with the leave of the court.”
8. The procedure for bringing applications under the Rules is set out in Rule 19 which states: -
“19.A formal application under these rules shall be by Notice of Motion set out in Form D in the schedule and may be supported by an affidavit.”
9. The guiding principles in an application to amend pleadings were summarized in the case of St Patrick’s Hill School Limited v. Bank of Africa Kenya Limited [2018] eKLR as follows:
“21.A wider footage on the same issue was given in a more recent case of Ochieng & others v. First National Bank of Chicago Civil Appeal Number 147 of 1991 the Court of Appeal clearly set out the principles under which Courts may grant leave to amend the pleadings. The same is as follows:
a. The power of the Court to allow amendments is intended to determine the true substantive merits of the case
b. The amendments should be timeously applied for;
c. Power to amend can be exercised by the Court at any stage of the proceedings.
d. 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.
e. 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 limitations Act subject however to powers of the Court to still allow an amendment notwithstanding the expiry of the current period of limitation.”
10. Likewise, the Court in the case of Rogers Mogaka Mogusu v. George Onyango Oloo & 2 others [2014] eKLR noted as follows:
“14.… I am of the view that the ends of justice will be achieved and the principles and values enunciated in Chapter Six of the Constitution with better be served if the amendment is allowed and the issues in contest dealt with wholly. At this point, this Court is not concerned with the substantive merits of the Petitioner’s case as those are matters that will be canvassed at the hearing and I am therefore satisfied that the amendment will help the Court conclusively determine the issue before it and declining the amendment at this stage may only lead to the filing of another suit and such an approach would negate the principles of Judicial authority enunciated in Article 159(2) of the Constitution that all suits should be expeditiously determined.”
11. Prior to determining whether the applicants have met the conditions for grant of leave to amend both the Petition and the notice of Motion it is important to first and foremost determine the issue raised by the respondents that the Mutunga rules do not permit amendment of Notice of motions because the same are not pleadings. A clear look of the Mutunga rules it is outright the same do not define what amounts to a pleading.
12. The definition as to what amounts to a pleading is found under section 2 of the Civil Procedure Act which defines pleadings to include petition or summons, and the statements in writing of the claim or demand of any plaintiff, and of the defense of any defendant thereto, and of the reply of the plaintiff to any defence or counterclaim of a defendant but does not include what may be termed interlocutory applications including Chamber Summonses and Notices of Motion. Order 8 rule 3 of the Civil Procedure Rules, 2010, which are rules that originated from the civil Procedure act and which seem to inform the argument by the Respondents limits amendments to pleadings.
13. However under the same rules under Order 8 rule 5(1) which a replica of Section 100 of the civil procedure Act gives the court general power to either on 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 for the purpose of determining the real question in controversy between the parties, or correcting any error in any proceedings. It is evident from therefore that this court has power to order for an amendment to any document including an amendment to a notice of motion at any stage for purposes of determining the real question in controversy between the parties.
14. In Fredrick Mwangi nyaga v. Garam Investments & Another (2013) e KLR at page 5 and 6 Havelock J., stated:-
“with respect, I do not consider that learned counsel for the defendant has read the above provision entirely. The second sentence after the word “or” allows the correction of any defect or error in any proceedings. In my view, a Notice of Motion is part of the proceedings of a suit. I do not consider that the power to amend a proceeding is confined solely for the purposes of determining the real question of controversy between the parties. As a consequence, I agree with counsel for the Plaintiff when he says that this provision of Order 8 rule 5 allows this court to consider an application for amendment to (in this case), the plaintiff’s Notice of Motion dated 14th June, 2013. I believe that the decision in Echaria v. Echaria case (supra) is binding upon this court with the slight reservation that the application to amend the Notice of Motion before that Court was brought under the Court of appeal Rules.”
15. I associate myself with the sentiments of Havelock J and reiterate that in deed a notice of Motion Application can be amended.
16. Having stated as herein above I proceed to determine whether there is any reasonable cause for denying the amendment herein sought. The Petitioners herein aver that upon them reviewing their petition and the notice of Motion Application dated 14th August, 2024, they discovered that was a need to amend both the motion and the Petition to specify the relief sought were to be issued by this court pending the hearing of both the Application and the Petition. They contend that the application has been brought within a reasonable time as held in the case Kyalo v Bayusuf Brothers Ltd, Civil Appeal No. 38 of 1983 and therefore, will not affect the speedy and timely conclusion of the case. the Petitioners argued contended to this application to amend will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs as held in Tripat Singh Mangat (Suing on his behalf and on behalf of Mangat I,B. Patel (MIBP) Limited) v Manjeet Singh Bhachu & 3 others [2021] eKLR.
17. They submitted that the application to amend is on the basis of an error or mistake, which is not fraudulent as held in the case Balaji (EPZ) Limited v Nairobi City Water & Sewerage Company Limited (Civil Suit 258 of 2018) [2022] KEHC 11160 (KLR). Equally the argued that no prejudice will be occasioned to the Respondents if the amendments are granted, as they do not alter the substance of the Petition but instead enhance clarity and precision, ensuring the effectiveness of the conservatory orders sought.
18. The Respondent on the other hand claim that the Application is an afterthought given that the court had comprehensively determined the Notice of Motion Application. They also claim that the affidavit in support of the Application does relate to the Application for amendment.
19. Before dealing with the issue as to whether this court had dealt with the notice of motion conclusively and hence this Application is afterthought, it is important to point out that from the attached the proposed amendments are in both the Petition and the Notice Motion Application and not in the Notice motion alone. It therefore goes without saying that the leave to amend the petition is unchallenged.
20. On the claim that this court had determined the notice of motion substantively on merit, the proceedings of this court. Are clear that when the matter came up for Interpartes hearing of the Application, the Respondents who had filed a Preliminary objection to the Petition urged the court to have the same determined first and the court obliged. The petitioners through their advocate requested this court to give an order of maintenance of status quo pending the hearing and determination of the preliminary objection.
21. However the court noted that the Petitioners had not raised a substantive prayer for the same in their Application upon which an order of status quo could be granted and thus declined to grant the order of status and directed that the Preliminary objection be heard first.
22. The observation of the court that the Petitioner had not raised a substantive prayer for status quo in the Application to warrant grant of the same pending the hearing and determination of the preliminary objection as heard been prayed by their advocate amounted to a determination of the notice of motion substantively.
23. In the upshot, find that the argument that this Application is an afterthought unmerited because the court is yet to entertain the notice of motion Application on merit as alleged by the Respondents.
24. Regarding the claim by the respondents that the Affidavit in support of the Application being unrelated to it, I have seen the affidavit dated 8.11.24 attached to the application which is different from the supporting affidavit dated 14.8.24 . The instant application is thus supported by the affidavit davit dated 8.11.24 and thus the submissions that the application is not supported by an affidavit does not hold any water. .
25. Returning to the main issue as to whether Petitioners have met the conditions for grant of leave to amend their pleadings. As was observed in the case of Rogers Mogaka Mogusu v. George Onyango Oloo & 2 others [2014] which I have highlighted above the sole reason as to why a court should allow amendment is always to ensure that if such amendments allowed the same would help the Court to conclusively determine the issues before it and declining the said amendment at the preliminary stage may only lead to a party of another suit and such an approach would negate the principles of Judicial authority enunciated in Article 159(2) of the Constitution that all suits should be expeditiously determined. As I have pointed hereinabove, this court was in the course of this proceeding faced with a scenario whereby the Petitioner prayed for interim conservatory orders pending the hearing of the preliminary objection that the respondents and which this court. This court in its own observation without being moved by the respondents observed that it was incapable of issuing such an interim order pending the hearing of the of the Preliminary no such a substantive prayer in the Notice of motion.
26. Given that the Notice of Motion is yet to be heard on would be fair and Just to allow the Petitioner leave to amend their Notice of motion to include such a prayer to enable this court to make determination as to whether they are deserving of conservatory orders. The Respondents have not displayed any prejudice they would suffer that cannot be compensated by way damages if the Applicant is allowed to amend the Petition.
27. Having gone through all the proposed amendments on both the Petition and notice of motion Application, I find the same to be relevant to the real questions in controversy in the petition .
28. The above being the position I find merit in the Notice of Motion dated 5th November 2024 and I allow it with costs to the respondents .
DELIVERED VIRTUALLY IN THE PRESENCE OF
JOSHUA KEMBERO HB FOR MR ONGITI FOR PETITONER . NO APPEARANCE FOR THE RESPONDENTS
CA : OIGO
KEMBERO : We seek that the draft application be seemed as duly filed .
Order : granted.
T.A ODERA
JUDGE
30.1.25
Kembero : we seek conservatory orders sought in the application.
Order ; The application be served for directions on 3.2.25 at noon. .