Introduction and Background
1. The matter coming up for determination is the Plaintiffs/Applicants' Notice of Motion application dated 31st March 2026. The application is brought pursuant to Order 8 Rule 5 and Order 50 Rules 1 to 3 of the Civil Procedure Rules, alongside sections 1A, 1B, and 3A of the Civil Procedure Act. The Applicants seek the principal order that they be granted leave to further amend their Amended Amended Plaint dated 30th January 2013, with the costs of the application being provided for.
2. The application is premised on the grounds set out on the face of the Motion and is further supported by the verifying affidavit of Emma Wambaa, the 1st Plaintiff herein, sworn on 31st March 2026. The Applicants contend that since the filing of the Amended Amended Plaint, there have been fundamental discoveries necessitating the proposed amendments to ensure that all matters in controversy are effectually and completely adjudicated upon.
3. To contextualize the nature of these discoveries, the 1st Plaintiff deposes that on 31st December 2025, the Applicants commissioned Ragos Valuers & Estate Agents to update a prior valuation report dated 23rd March 2011. The updated report revealed that the Defendant/Respondent had constructed extensive structures on the suit property, including a double-storey block comprising eight two-bedroom flats, a pit latrine block, a sentry shed, and a caretaker's unit. Consequently, the valuers assessed the accumulated open market rental value of the property as of 31st December 2025 at Kshs. 15,390,000/=. The Applicants assert that it is in the interest of substantive justice, as enshrined under Article 159(2)(d) of the Constitution, to permit the amendment so they may seek specific reliefs regarding these developments and loss of rental income. Relying on the Court of Appeal’s holding in J. C. Patel -v- B. D. Joshi (1952) 19 EACA 42, the Applicants maintain that the proposed amendment can be made without occasioning any prejudice or injustice to the Respondent, who has been given due notice through the pleadings to date and will have ample opportunity to defend himself.
4. The application is strongly opposed by the Defendant/Respondent through a Replying Affidavit sworn on 24th April 2026. The Respondent characterizes the application as an abuse of the court process, averring that it has been brought too late in the proceedings and attempts to introduce prayers that are time-barred.
5. The crux of the Respondent's objection is that the existence of the rental buildings and their occupation does not constitute a newly discovered fact. He deposes that the Applicants have always been aware of these developments, asserting that this knowledge was evident even at the time the original suit was filed. To buttress this point, the Respondent highlights that the Applicants had previously acknowledged the developments in an application dated 12th May 2011, wherein they unsuccessfully sought the appointment of a receiver manager to collect rent. Consequently, the Respondent urges the court to dismiss the current application with costs, terming it a "backdoor excavation" of the dismissed 2011 application, strategically calculated to delay the final determination of the suit.
6. The application was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this ruling.
Issues for determination
7. I have carefully considered the Plaintiffs/Applicants’ Notice of Motion dated 31st March 2026, the supporting affidavit, the Respondent’s replying affidavit, and the rival written submissions filed by counsel for both parties.
8. The primary issue for determination before this court is: Whether the Plaintiffs/Applicants should be granted leave to further amend their Amended Amended Plaint dated 30th January 2013.
Analysis and Determination
9. The power of the court to grant leave to amend pleadings is discretionary. This discretion is statutorily anchored in the Civil Procedure Rules, 2010, specifically under Order 8 Rule 3, which provides:
"Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this Order, 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."
10. Further, Order 8 Rule 5 (1) mandates the court to focus on the core dispute between the parties, expressly stating:
"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."
11. The Applicants aver that the amendment is necessitated by the updated valuation report from Ragos Valuers & Estate Agents dated 31st December 2025, which quantified the extent and rental value of the developments erected by the Respondent on the suit property. They argue that to achieve a fair hearing, these newly quantified facts must be formally pleaded. To support this position, the Applicants correctly rely on the Court of Appeal’s holding in Provincial Insurance Company of East Africa -v- Nandwa [1995-1998] 2 EACA 288, which established the cardinal rule that:
"[C]ases must be strictly decided on the basis of the issues placed on the record. If a party wishes to have a case decided on a different basis, they must place it on record through an amendment."
12. This principle is further strengthened by the holding in Independent Electoral And Boundaries Commission & Another -v- Stephen Mutinda Mule & 3 Others [2014] eKLR, which emphasizes the strict boundaries of our adversarial system:
"As a general principle, a party is bound by his pleadings and cannot be allowed to raise a different or fresh case without due amendment."
13. The Respondent vehemently opposes the application on the grounds of inordinate delay, asserting that the suit has been pending since 2004 (originally CMCC No. 13591/2004) and that the Applicants were aware of the developments as early as 12th May 2011. The Respondent contends that the application is an abuse of the court process meant to introduce a time-barred claim and delay the suit's final determination.
14. While the court notes the Respondent's frustrations regarding the age of this matter and the multiplicity of amendments, the court’s discretion must be guided by the overriding objective of civil litigation, as enshrined in Section 1A (1) and (2) of the Civil Procedure Act:
"(1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. (2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1)."
15. Furthermore, Article 159 (2) (d) of the Constitution of Kenya, 2010 commands this court to ensure that substantive justice is not defeated by procedure, stating:
"In exercising judicial authority, the courts and tribunals shall be guided by the following principles— (d) justice shall be administered without undue regard to procedural technicalities."
16. The guiding parameters for allowing or rejecting an application for amendment were succinctly laid out in the landmark decision of Central Kenya Ltd -v- Trust Bank Ltd & 5 Others [2000] eKLR. In that case, the Court of Appeal held that:
"A party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested or accrued legal right is affected and that the amendment can be allowed without injustice to the other side."
17. The existence of the developments (the double-storey block, sentry shed, etc.) and the claim for mesne profits/rental income are inextricably linked to the primary dispute over the suit property. Barring the Applicants from pleading these specific, quantified claims would mean the court would only partially resolve the dispute, inevitably leading to a multiplicity of suits regarding the developments on the land.
18. On the issue of delay and alleged negligence by the Applicants in failing to plead these particulars earlier, the jurisprudence is well settled. In the locus classicus case of J.C. Patel -v- B.D. Joshi (1952) 19 EACA 42, the predecessor to the Court of Appeal provided clear guidance:
"The general rule is that amendments to pleadings are freely allowed if they can be made without causing injustice to the other side. There is no injustice if the other side can be compensated by costs... An amendment should be permitted even if the party applying for it was initially negligent."
19. I find that the proposed amendments do not alter the fundamental character of the suit, nor do they introduce a completely alien cause of action. The foundation of the suit remains the contested rights over the suit property. The proposed amendments merely seek to particularize the consequential reliefs arising from the Respondent's continued use and development of the said property. The Respondent has not demonstrated any prejudice or accrued right that would be irreparably defeated by this amendment. Any inconvenience occasioned to the Respondent by this late amendment can, and will, be adequately compensated by an award of costs.
20. Ultimately, shutting the door on the Applicants at this juncture would defeat the essence of substantive justice and the overriding objective of this court.
21. Having analyzed the competing interests and the applicable legal principles, I find merit in the Applicants' Notice of Motion dated 31st March 2026.
22. Consequently, I make the following orders:
A. THAT the Plaintiffs/Applicants are hereby granted leave to further amend their Amended Amended Plaint dated 30th January 2013 in terms of the draft annexed to the application.
B. THAT the Plaintiffs/Applicants shall file and serve the Further Amended Plaint within Fourteen (14) days from the date of this ruling.
C. THAT the Defendant/Respondent shall be at liberty to file and serve an Amended Defence (if need be) within Fourteen (14) days of service of the Further Amended Amended Plaint.
D. THAT since the Plaintiffs/Applicants are seeking the court's indulgence to amend their pleadings at this advanced stage of the proceedings, the costs of this application shall be borne by the Plaintiffs/Applicants and awarded to the Defendant/Respondent.
It is so ordered.
Dated, Signed and Delivered Virtually this 21st Day of May, 2026.
M.D. MWANGI
JUDGE
In the virtual presence of:
Mr. Munyori for the Plaintiffs/Applicants
Mr. Kirori for the Defendant/Respondent
Court Assistant: Alex
M.D. MWANGI
JUDGE