'1. Before the Court for consideration is the defendant’s Notice of Motion application dated June 20, 2025, which primarily seeks approval for the defendants to amend their Statement of Defense dated March 19, 2025, in accordance with the draft Amended Defense and Counterclaim provided. The application is opposed by the plaintiff’s replying affidavit, sworn on July 18, 2025, and filed on July 21, 2025.
2. The application was canvassed via written submissions. I acknowledge receipt of submissions from learned counsel, Mr. Njoroge, on behalf of the defendant/applicant, and learned counsel for the plaintiff/respondent, Mr. Ngari, with appreciation, as their contributions were instrumental in addressing the issues raised in the motion.
3. The issues I then present for this court''s consideration are whether to grant leave to amend the defense and introduce a counterclaim, and who should bear the costs of the application.
4. The applicant asserts that, in this matter, the plaintiff’s case primarily pertains to a claim for breach of contract founded on a Service Level Agreement dated May 3, 2024, entered into by the parties. The plaintiff seeks to recover professional or consultancy fees for survey work by transferring ownership of two properties. The defendants'' proposed amendments encompass: a rephrasing of the existing defense, which claims non-performance of the Service Level Agreement by the plaintiff, now articulated more clearly; and a counterclaim seeking a refund of part of the consideration paid under the Agreement due to non-performance, a declaration that the Agreement is unenforceable due to the plaintiff''s lack of legal capacity, and an order compelling the plaintiff to produce documents, such as deed plans, related to the Agreement that it possesses.
5. In the applicant''s view, the proposed amendments: assert a cause of action similar to that of the plaintiff, specifically breach of contract; introduce a related but distinct cause of action regarding the unenforceability of the contract; are based on the same facts and transaction—the Service Level Agreement dated May 3, 2024; and include counterclaims that cannot be litigated appropriately separately, as they involve legal and factual issues that are directly and substantially connected to this case. Therefore, the applicant argues that the requested amendments should be granted.
6. The respondents, on the other hand, contend that the defendants are effectively introducing new subject matter and causes of action not previously addressed in the principal suit. The defendants submitted a defense dated March 19, 2025, following a delay influenced by the court''s discretionary favor and the plaintiff''s considerations.
7. After discovering a potential conflict of interest regarding the professionalism of the defendant’s legal representatives, the defendant’s former counsel recused themselves, and new legal advocates were properly appointed. The current advocates aim to revise the initial defense and also plan to file a counterclaim.
8. The respondents argue that while it is generally not objectionable to oppose amendments and counterclaims in practice, the following application is objectionable for the following reasons: it is based on groundless allegations about the professionalism of the agents and directors of the plaintiff as a basis for the Counter-Claim. This is unnecessary, and if such issues exist—which they assert do not—they are better addressed in a different forum.
9. The respondent asserts that a review of the proposed counterclaim paragraphs 16(b) and 20 shows these sections are not only defamatory but also contain false statements about the agents of a legal entity that entered into the contract with the defendants and completed the transaction. The Service Level Agreement was signed by the defendants’ attorneys, who were fully aware of the plaintiff''s capacity as a consulting legal entity. The insinuations are petty and appear to be a malicious attempt to avoid the defendants’ contractual obligations under a contract they drafted and signed.
10. The respondents argue that the Director, who signed the affidavits and pleadings in support of the defendants’ affidavit, is a minority shareholder, and that the so-called resolutions of the defendants cannot be considered valid. They also contend that the defendants are creating opportunities for other causes of action and even alleging issues of professionalism, which should not be relevant in this court. The defense and counterclaim seek to introduce new matters outside this court''s jurisdiction. The defendants have never raised any issue or claim of breach of contract based on unprofessionalism or the plaintiff''s incapacity to execute the Service Level Agreement.
11. In the amended defense and counterclaim, no document or letter questioning the defendant''s breach of the contract was attached. The respondent asserts that, upon examination of the amended defense and counterclaim, they are directed at the plaintiffs'' personnel who were recruited under the Articles of Association of the plaintiff. This fact was known to all parties during the execution of the Service Level Agreement and subsequent contract performance.
12. The defendant asserts that this is clearly restated in paragraph (3) of the plaintiff''s replying affidavit, which does not require paraphrasing. The respondent argues that it is not apparent that the swift action taken by the defendants to add a supplementary affidavit—an obvious attempt to avoid liability and discredit the executors of the Service Level Agreement, including the defendants—serves as sufficient evidence of an effort to evade responsibility. The matter of amending pleadings must be addressed without any legal trickery.
13. The defendant argues that this amendment and counterclaim are malicious, filed in bad faith, vexatious, and scandalous to officers or agents of a litigating party not involved in the suit.
14. The legislation regulating the modification of pleadings is delineated in Section 100 of the Civil Procedure Act (Cap. 21 of the Laws of Kenya) and in Order 8, Rules 3 and 5 of the Civil Procedure Rules. Section 100 of the Civil Procedure Act provides as follows:
“The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.”
15. Conversely, Order 8 Rules 3(1) and 5(1), 5(4), and 5(5) of the Civil Procedure Rules, stipulate that:
“3(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.”
“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.”
“5(4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which the party will sue is one in which, at the date of filing of the plaint or counterclaim, he could have sued.”
“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.”
16. In accordance with the foregoing provisions of the law, I concur with the judicial authorities cited by the parties concerning the court''s authority to allow an amendment. Significantly, in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013]eKLR, a decision cited by both parties, the court held:
“ The ratio that emerges out of what was quoted from the said book is that powers of the court to allow amendments is to determine the true, substantive merits of the case, amendments should be timeously applied , power to so amend can be exercised by the court at any stage of the proceedings (Including appeal stages) that the proposed amendment must not be immaterial or useless or merely technical, that if the proposed amendments introduced 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”
17. The defendant''s proposed amendments were submitted before the commencement of the lawsuit hearing. According to relevant laws and precedents, as alluded to, amendments to pleadings are permissible at any stage of the proceedings, particularly before trial. Such amendments are intended to clarify the parties'' primary issue or to correct any errors in the pleadings. They are permitted even if they alter the capacity in which a party files the suit, or if they add or replace a cause of action, provided that the cause of action is founded on the same facts or transaction.
18. Furthermore, these amendments are only allowed if they do not unjustly prejudice the opposing party by nullifying existing rights. In the present case, the plaintiff’s claim pertains to breach of contract concerning a Service Level Agreement dated May 3, 2024, between the parties, whereby the plaintiff seeks enforcement of professional or consultancy fees for survey work through the transfer of ownership of two properties.
19. The proposed amendments by the defendants include rephrasing the existing defense of non-performance of the aforementioned Service Level Agreement by the plaintiff in more precise terms and asserting a counterclaim seeking: - a partial refund of the consideration paid under the Service Level Agreement due to non-performance; - a declaration that the Service Level Agreement is unenforceable because of the plaintiff''s lack of legal capacity; and - an order directing the plaintiff to release documents (deed plans) obtained through the agreement.
20. Therefore, in my considered opinion, the proposed amendments by the defendants: - establish a similar cause of action (breach of contract) as that of the plaintiff; - introduce a new but related cause of action (unenforceability of the contract); - are founded on the same facts or transaction underlying this case—the Service Level Agreement dated May 3, 2024; and - encompass counterclaims that cannot be adequately addressed in a separate proceeding, as they involve legal and factual issues that are directly and substantively pertinent to this case. Objections raised by the plaintiff to the current application may be effectively preserved for trial.
21. Therefore, this court grants the amendment. The application dated June 20, 2025, is hereby allowed.
22. There will be no order regarding costs.
Dated, signed, and delivered electronically in Malindi on November 26, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Ngari for the Plaintiff
Mr. Njoroge for the Defendant
Happy: Court Assistant
'
2. The application was canvassed via written submissions. I acknowledge receipt of submissions from learned counsel, Mr. Njoroge, on behalf of the defendant/applicant, and learned counsel for the plaintiff/respondent, Mr. Ngari, with appreciation, as their contributions were instrumental in addressing the issues raised in the motion.
3. The issues I then present for this court''s consideration are whether to grant leave to amend the defense and introduce a counterclaim, and who should bear the costs of the application.
4. The applicant asserts that, in this matter, the plaintiff’s case primarily pertains to a claim for breach of contract founded on a Service Level Agreement dated May 3, 2024, entered into by the parties. The plaintiff seeks to recover professional or consultancy fees for survey work by transferring ownership of two properties. The defendants'' proposed amendments encompass: a rephrasing of the existing defense, which claims non-performance of the Service Level Agreement by the plaintiff, now articulated more clearly; and a counterclaim seeking a refund of part of the consideration paid under the Agreement due to non-performance, a declaration that the Agreement is unenforceable due to the plaintiff''s lack of legal capacity, and an order compelling the plaintiff to produce documents, such as deed plans, related to the Agreement that it possesses.
5. In the applicant''s view, the proposed amendments: assert a cause of action similar to that of the plaintiff, specifically breach of contract; introduce a related but distinct cause of action regarding the unenforceability of the contract; are based on the same facts and transaction—the Service Level Agreement dated May 3, 2024; and include counterclaims that cannot be litigated appropriately separately, as they involve legal and factual issues that are directly and substantially connected to this case. Therefore, the applicant argues that the requested amendments should be granted.
6. The respondents, on the other hand, contend that the defendants are effectively introducing new subject matter and causes of action not previously addressed in the principal suit. The defendants submitted a defense dated March 19, 2025, following a delay influenced by the court''s discretionary favor and the plaintiff''s considerations.
7. After discovering a potential conflict of interest regarding the professionalism of the defendant’s legal representatives, the defendant’s former counsel recused themselves, and new legal advocates were properly appointed. The current advocates aim to revise the initial defense and also plan to file a counterclaim.
8. The respondents argue that while it is generally not objectionable to oppose amendments and counterclaims in practice, the following application is objectionable for the following reasons: it is based on groundless allegations about the professionalism of the agents and directors of the plaintiff as a basis for the Counter-Claim. This is unnecessary, and if such issues exist—which they assert do not—they are better addressed in a different forum.
9. The respondent asserts that a review of the proposed counterclaim paragraphs 16(b) and 20 shows these sections are not only defamatory but also contain false statements about the agents of a legal entity that entered into the contract with the defendants and completed the transaction. The Service Level Agreement was signed by the defendants’ attorneys, who were fully aware of the plaintiff''s capacity as a consulting legal entity. The insinuations are petty and appear to be a malicious attempt to avoid the defendants’ contractual obligations under a contract they drafted and signed.
10. The respondents argue that the Director, who signed the affidavits and pleadings in support of the defendants’ affidavit, is a minority shareholder, and that the so-called resolutions of the defendants cannot be considered valid. They also contend that the defendants are creating opportunities for other causes of action and even alleging issues of professionalism, which should not be relevant in this court. The defense and counterclaim seek to introduce new matters outside this court''s jurisdiction. The defendants have never raised any issue or claim of breach of contract based on unprofessionalism or the plaintiff''s incapacity to execute the Service Level Agreement.
11. In the amended defense and counterclaim, no document or letter questioning the defendant''s breach of the contract was attached. The respondent asserts that, upon examination of the amended defense and counterclaim, they are directed at the plaintiffs'' personnel who were recruited under the Articles of Association of the plaintiff. This fact was known to all parties during the execution of the Service Level Agreement and subsequent contract performance.
12. The defendant asserts that this is clearly restated in paragraph (3) of the plaintiff''s replying affidavit, which does not require paraphrasing. The respondent argues that it is not apparent that the swift action taken by the defendants to add a supplementary affidavit—an obvious attempt to avoid liability and discredit the executors of the Service Level Agreement, including the defendants—serves as sufficient evidence of an effort to evade responsibility. The matter of amending pleadings must be addressed without any legal trickery.
13. The defendant argues that this amendment and counterclaim are malicious, filed in bad faith, vexatious, and scandalous to officers or agents of a litigating party not involved in the suit.
14. The legislation regulating the modification of pleadings is delineated in Section 100 of the Civil Procedure Act (Cap. 21 of the Laws of Kenya) and in Order 8, Rules 3 and 5 of the Civil Procedure Rules. Section 100 of the Civil Procedure Act provides as follows:
“The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.”
15. Conversely, Order 8 Rules 3(1) and 5(1), 5(4), and 5(5) of the Civil Procedure Rules, stipulate that:
“3(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.”
“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.”
“5(4) An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which the party will sue is one in which, at the date of filing of the plaint or counterclaim, he could have sued.”
“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.”
16. In accordance with the foregoing provisions of the law, I concur with the judicial authorities cited by the parties concerning the court''s authority to allow an amendment. Significantly, in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013]eKLR, a decision cited by both parties, the court held:
“ The ratio that emerges out of what was quoted from the said book is that powers of the court to allow amendments is to determine the true, substantive merits of the case, amendments should be timeously applied , power to so amend can be exercised by the court at any stage of the proceedings (Including appeal stages) that the proposed amendment must not be immaterial or useless or merely technical, that if the proposed amendments introduced 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”
17. The defendant''s proposed amendments were submitted before the commencement of the lawsuit hearing. According to relevant laws and precedents, as alluded to, amendments to pleadings are permissible at any stage of the proceedings, particularly before trial. Such amendments are intended to clarify the parties'' primary issue or to correct any errors in the pleadings. They are permitted even if they alter the capacity in which a party files the suit, or if they add or replace a cause of action, provided that the cause of action is founded on the same facts or transaction.
18. Furthermore, these amendments are only allowed if they do not unjustly prejudice the opposing party by nullifying existing rights. In the present case, the plaintiff’s claim pertains to breach of contract concerning a Service Level Agreement dated May 3, 2024, between the parties, whereby the plaintiff seeks enforcement of professional or consultancy fees for survey work through the transfer of ownership of two properties.
19. The proposed amendments by the defendants include rephrasing the existing defense of non-performance of the aforementioned Service Level Agreement by the plaintiff in more precise terms and asserting a counterclaim seeking: - a partial refund of the consideration paid under the Service Level Agreement due to non-performance; - a declaration that the Service Level Agreement is unenforceable because of the plaintiff''s lack of legal capacity; and - an order directing the plaintiff to release documents (deed plans) obtained through the agreement.
20. Therefore, in my considered opinion, the proposed amendments by the defendants: - establish a similar cause of action (breach of contract) as that of the plaintiff; - introduce a new but related cause of action (unenforceability of the contract); - are founded on the same facts or transaction underlying this case—the Service Level Agreement dated May 3, 2024; and - encompass counterclaims that cannot be adequately addressed in a separate proceeding, as they involve legal and factual issues that are directly and substantively pertinent to this case. Objections raised by the plaintiff to the current application may be effectively preserved for trial.
21. Therefore, this court grants the amendment. The application dated June 20, 2025, is hereby allowed.
22. There will be no order regarding costs.
Dated, signed, and delivered electronically in Malindi on November 26, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Ngari for the Plaintiff
Mr. Njoroge for the Defendant
Happy: Court Assistant
'