REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
COMMERCIAL & TAX DIVISION
HIGH COURT COMMEFCIAL CASE NO. E001 OF 2026
(Coram: Andayi W. F., J.)
HELLEN NJOKI WAINAINA T/A AQUA RESORT…....…PLAINITFF/APPLICANT
VERSUS
EZIO MORENO GIANOLA............................................1 ST DEFENDANT/RESPONDENT
GIOVANNI QUADRELLI………………………………..2 ND DEFENDANT/RESPONDENT
RULING
1. The plaintiff herein filed suit against the defendants through a plaint dated 13 th March 2026 seeking the following orders:
a. A declaration that the plaintiff is the sole lawful shareholder and director of Aqua Apartment Limited and is entitled to exclusive possession, management, and control of the business known as Aqua Resort.
b. A permanent injunction restraining the defendants whether by themselves, their agents or servants, from interfering with the plaintiff’s management of Aqua Resort, harassing guests or representing themselves as owners or managers of the said business.
c. An order for mandatory injunction compelling the defendants to immediately vacate the business premises and hand over all books of accounts, booking records and digital access keys (including OTA/booking platform logins) to the plaintiff.
d. An order for accounts directing the defendants to provide a comprehensive audited account of all revenues, deposits and profits collected from the operations of Aqua Resort from 27 th May 2025 to the date of judgment.
e. Special damages in the sum of KShs. 31,000,000/= being unpaid management revenues and misappropriated business entitlements.
f. General damages for breach of contract, breach of fiduciary duties, and unlawful interference with business operations.
g. Interest on (5) and (6) above at court rates from the date of filing until payment in full.
h. Costs of the suit and interest thereon.
i. Any other or further relief that this Court may deem just and fit.
2. The defendants herein raised a preliminary objection dated 26 th March 2026 against the plaintiff’s suit on grounds that;
i. The plaintiff lacks the requisite locus standi to institute and maintain the suit in her own capacity as the matter raised relates to the affairs and management of Aqua Apartment Limited which is a distinct legal entity with the capacity to sue or be sued in its name,
ii. The cause of action offends the rule in Foss v Harbottle , the suit is incompetent for failing to comply with requirements governing derivative actions under the companies Act (Cap. 486) Laws of Kenya.
iii. The suit is incompetent for a non-joinder of a necessary party, Aqua Apartment Limited,
iv. The suit is defective for being filed by an unqualified person,
v. The orders sought are incapable of being enforced as they purport to affect a non- party Aqua Apartment Limited,
vi. The suit and the application are an abuse of the process of the Court.
3. The plaintiff subsequently filed a Notice of Motion dated 31 st March 2026 seeking leave to amend the plaint, the notice of motion and necessary pleadings for the name of the plaintiff to read "Aqua Apartment Limited", from "Hellen Njoki Wainaina T/A Aqua Resort."
4. The application is brought under Orders 1 Rule 10, Order 8 Rule 3 & 5 of the Civil Procedure Rules, Sections 1A, 1B & 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution of Kenya.
5. The grounds in support of the application are set out on the face of the application and expounded in the supporting affidavit sworn on 31 st March 2026 by Hellen Njoki Wainaina. They are that the plaintiff/applicant’s suit was instituted under a bona fide mistake and misdescription of the party’s name as "Aqua Resort" instead of the legal entity "Aqua Apartment Limited". That the cause of action and the substratum of the suit relate to the affairs and assets of Aqua Apartment Limited and the respondents are aware of the same. The respondents have filed a preliminary objection dated 26 th March 2026 citing this misdescription. The applicant asserts that no prejudice will be suffered by the respondents if the amendment is allowed, as the core issues of the dispute remain unchanged. It is the applicant’s plea that it is in the interest of justice and the overriding objective of this court that the matter be heard on its merits rather than being struck out on technicalities.
6. The applicant states that the indication of of the plaintiff in the plaint and other pleadings as "Hellen Njoki Wainaina t/a Aqua Resort" instead of the correct legal entity Aqua Apartment Limited arose during the drafting process where an inadvertent clerical error and misapprehension occurred. It is the applicant’s case that the clerical error prompted the respondents to file the preliminary objection dated 26 th March 2026, arguing that the suit is incompetent due to the lack of locus standi of the current named plaintiff. The applicant deposes that that this is a curable misdescription of a party and does not go to the root of the cause of action.
7. The applicant further deposes that the intended plaintiff, Aqua Apartment Limited is a distinct legal entity with the capacity to sue and be sued and it is the party whose rights are directly affected by the actions of the respondents. As such it is necessary to amend the pleadings to reflect the correct party name to ensure that the orders of this court are enforceable and to satisfy the requirements of the law.
8. The applicant concludes by stating that no prejudice will be occasioned by the respondents that cannot be compensated by an award of costs.
9. The respondents did not file any response to the application. I take it that they considered it to be a response to their preliminary objection and therefore no need for a further response.
10. The court directed that the application and the preliminary objection be argued by way of written submissions. Learned counsels for both parties filed comprehensive submissions addressing both the preliminary objection and the application.
11. Learned counsel for the applicant filed submissions dated 31 st March 2026. He submits that the issues for determination as submitted are whether the misdescription of a party is a fatal jurisdictional defect or a curable technicality and whether the application for amendment should take precedence over the preliminary objection to facilitate substantive justice.
12. On the first issue counsel submitted that reference to the plaintiff as “Aqua Resort” instead of “Aqua Apartment Limited” was a bona fide clerical error and not lack of a cause of action. Counsel relied on the case of Central Kenya Limited v. Trust Bank Ltd & 4 Others [1996] eKLR. Learned counsel submits that where the Court of Appeal held in that case that a misdescription of a party does not make the suit a nullity if the intended party is identifiable and the error is a mere slip of the pen. I have checked out the several cases on the kenyalaw website but I am unable to find that holding in any of them. The correct citation of a case that deals with the issue of amendment of pleadings is Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] KECA 367 (KLR) where the Court of Appeal held that:
“... the guiding principle in applications for leave to amend is that all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs (see, Beoco Ltd v. Alfa Laval Co. Ltd [1994]4 ALL ER. 464).”
13. On the second issue, learned counsel submitted that the court has wide discretionary powers to allow amendments at any stage of the proceedings to ensure that the real questions in controversy are determined. Learned counsel has relied on the case of Samuel Matunde Muchina v Samuel Kiptoo Ruto & 9 others [2020] KEELC 1037 (KLR) and submits that the case confirms that where a suit is commenced in the name of the wrong plaintiff due to a bona fide mistake the court may order substitution. Once again, checking out this decision on the new.kenyalaw.org website I do not find any such holding in that case. The related case of Samuel Kiptoo Ruto & 9 others v Samuel Matunde Muchina [2020] KECA 120 (KLR) was an appeal to the Court of Appeal and it was not dealing with the issue of amendment of pleadings. A related case that dealt with the issue of amendment is Samuel Matunde Muchina v Samuel Kiptoo Ruto & 9 others; Joshua Kirwa Bett (Suing as the Power of Attorney for Priscilla Jebungei Kirwa) & 7 others (Interested Parties/Applicants) [2020] eKLR . In that case, the court was dealing with the issue of joinder of a party and it held that Order 1 Rule (10) (2) CPR contemplates an application for amendment or joinder of parties where proceedings are still pending before the Court. The court declined the application for joinder, finding that the matter was concluded and a judgment rendered.
14. Learned counsel submitted that the respondents have already identified Aqua Apartment Limited as the “necessary party” to the proceedings and so they are not taken by surprise and their defence remains intact. Further, that the error is one of form rather than substance and that the dispute remains the management and assets of the company.
15. Counsel submitted that the preliminary objection seeks to terminate a legitimate claim on a technicality whereas the application for amendment seeks to bring harmony to the pleadings and facts. Counsel urged the court to allow the application for amendment and dismiss the preliminary objection with costs.
16. Learned counsel for the respondents filed submissions dated 8 th April 2026 in support of the preliminary objection and in response to the applicant’s application. Counsel submitted that naming Hellen Njoki Wainanina t/a Aqua Resort as the plaintiff instead of Aqua Apartment Limited is a fundamental mischaracterization. Learned counsel cited the Court of appeal case of Kassam v. Bank of Baroda (India) [2002]1EA 148 , for the holding that a misnomer arises where the correct party is before the court while substitution occurs where an entirely different party seeks to be brought in to the suit. Unfortunately, I was not able to lay my hands on that authority immediately and learned counsel has not provided a copy thereof.
17. Learned counsel submitted that the suit as filed offends the rule in Foss v Harbottle (1843) 2 Hare 461, 67 ER 189 , on derivative actions as the applicant had filed the suit in her personal capacity and not as the company, seeking reliefs against the respondents in relation to management and assets of Aqua Apartment Limited and that the applicant has not made any submissions on the same. Learned counsel has cited the case of Mwangi v. Gachiri & Another [2020] eKLR such that a director cannot sue in their personal capacity over company assets without complying with the derivative action provisions. I did not however find this decision on new.kenyalaw.org website. Learned counsel submitted that the applicant has not shown that the directors of the company are unwilling to sue; that leave of the court was obtained under section 239 of the Companies Act; that notice was given to the company under section 240 of the Companies Act and also has not provided an undertaking as to costs under section 242 (4) of the Companies Act 2015.
18. On Article 159 (2) (d) of the constitution counsel submitted that the lack of locus standi is a jurisdictional issue and not a technicality. He supported that submission with the case of Nicholas Kiptoo Arap Korir Salt v. IEBC & 7 others [2014] eKLR, for the holidng that article 159(2)(d) is not a panacea for all procedural lapses and it cannot be invoked to cure a nullity or to confer jurisdiction where non exists. Further that in the case of Raila Odinga v. IEBC [2017] eKLR, the Supreme Court held that technicalities that go to the root of jurisdiction cannot be waived under the guise of substantive justice.
19. Learned counsel submits that the issue of locus standi in this case is a jurisdictional question and not a procedural technicality. He said the case of Phoenix of E.A Assurance Co. Ltd. V. M. Thiga t/a Newspaper Service [1988] KLR 156 where the Court of Appeal held that a suit filed by a person without capacity is a nullity ab initio – not a technical defect but a fundamental jurisdictional failure.
20. Counsel further submitted that though the court has wide discretion to order an amendment the powers are not unlimited. The court in the case of David Gitome v. Invesco Assurance Co. Ltd [2028] eKLR, refused to allow an amendment substituting a trading name with a registered company. Counsel submitted the preliminary objection was properly before the court. Counsel submitted that Order 1 Rule 10 of the Civil Procedure Rules allows for joinder of a necessary party and not deleting the only plaintiff to substitute with a different legal entity.
21. Learned counsel submitted that the failure to join Aqua Apartments Ltd who are a necessary party to the suit makes it incompetent and that in the present case the only plaintiff is sought to be deleted and an entirely different legal entity substituted after the preliminary objection was filed. He cited the case of Amrital Chimanlal Shah v. Revabhai Lallubhai [1943] 18 KLR 35 for the holding that where a necessary party is not joined the suit is incompetent.
22. On prejudice to be suffered by the defendants learned counsel submitted that, the defendants have incurred costs in preparing the preliminary objection and they will lose a valid jurisdictional defence that had crystallized at the time of filing. That the defendants will now be forced to defend a suit brought by an entirely different party and also the defendants will be subjected to the risk if double litigation if the amendment is allowed.
23. Counsel contends that the application was not filed promptly. It was brought after the Preliminary Objection was filed to evade consequences of a fatal defect. Reliance was placed on the case of Eastern Bakery v. Castelion [1958] EA 461 .
24. Learned counsel for the defendants urged the court to dismiss the applicant’s Notice of Motion dated 31 st March 2026 and the supporting submissions with costs and to allow the preliminary objection and strike out the plaintiff’s suit with costs to the defendants.
25. I have considered the application and the submissions by learned counsels. The issues for determination framed by the court are as follows:
i. Whether the application for amendment takes precedence over the preliminary objection.
ii. Whether the preliminary objection is merited.
iii. Whether the applicant is entitled to the orders sought in the application.
26. This court appreciates that the nature of a preliminary objection is such that once it is raised, and argued it has the effecting of disposing of the entire suit. However, for the interests of dispensation of justice the court directed that both the Preliminary Objection and the application for amendment be disposed of simultaneously to save on the Courts time.
27. What constitues a Preliminary Objection was set out in the case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A 696 where the court defined it as follows:
As per Law J.A:
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”
As per Sir Charles Newbold P:
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
28. The High Court Prof. J.B. Ojwang. J (as he then was) in the case of Oraro v Mbajja [2005] e KLR explained a preliminary objection thus:
“I think the principle is abundantly clear. A preliminary objection, correctly understood is now well identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. I am in agreement...that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.?
29. The applicant’s response to the preliminary objection was to file an application to seek leave of the court to amend the plaint so as to cite the correct plaintiff, terming the initial party as an error. The respondent submits that this was not a mere misdescription of the plaintiff but a mischaracterization which then was a fundamental error. Further that Order 1 Rule 10 CPR allows for joinder of a necessary party but not to delete the plaintiff and substitute an entirely different legal entity.
30. The application was therefore the plaintiff’s answer to the preliminary objection and thus the court’s decision to consider both of them at once.
31. It has been held in numerous decisions that striking out a pleading is a draconian remedy that the court should be slow to employ and only in cases where the pleading is shown to be clearly untenable. That the court should aim to sustain rather than to summarily terminate a suit in order to give each party an opportunity to present its case for the court’s consideration and thereby render justice. The leading authority on this issue is the case of DT Dobie & Company (Kenya) Ltd v Muchina & another [1980] KECA 3 (KLR) where the issue was exyensivey discussed by Madan, J.A. who held that:
“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”
32. Reiterating the above position in the case of Blue Shield Insurance Company Ltd v Joseph Mboya Oguttu [2009] KECA 221 (KLR) the Court of Appeal observed that although what was before Madan, J. A. in the Muchina case above cited was an application seeking striking out a plaint on grounds that it did not disclose a reasonable cause of action against the defendant, he nonetheless dealt with broad principles which in effect covered all other aspects where striking out a pleading or part of a pleading is sought.
33. In view of those principles it behooves this court to consider the application for amendment first before considering the preliminary objection to the suit.
34. On the issue of amendment of the plaint, the general power to amend pleadings is provided for under Section 100 of the Civil Procedure Act (Cap. 21) Laws of Kenya 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."
35. On the particular issue raised herein on the substitution or addition of a party, Order 1 Rule 10(1) and (2) of the of the Civil Procedure Rules provides for the same as follows:
(1) Where a suit has been instituted in the name of the wrong persons as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms as the court thinks fit.
(2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.
36. Further Order 8 Rules 1, 3 and 4 of the Civil Procedure Rules provide 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.
...
(3) An amendment to correct the name of a party may be allowed under subrule (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.
(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.
37. Further, Order 8, Rule 5 of the Civil Procedure Rules gives the court the general power to amend pleadings as follows:
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.
38. The foregoing provisions on amendment of pleadings show that a court has wide discretionary power to look at all pleadings and satisfy itself that they can sustain a cause of action and where there is need for amendment to sustain the cause of action, either on its own motion or on application by a party, the same should be granted. This includes substitution of the parties to the suit.
39. The defendants’ contention is that the applicant had no capacity to institute the suit in the first place and so cannot purport to substitute the correct party. The defendants rely on a case cited as Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [1988] KLR for the holding that a suit filed by a person without capacity is a nullity ab initio and not a technical defect but a fundamental jurisdictional failure. Whereas, the position as expressed by learned counsel is correct in law, so that, for instance, where a suit is purported to be filed by a person who is since deceased at the time of filing, the same is a nullity and cannot be cured by amendment, the citation of the case above is wrong and in the correct citation which is Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) , the issue was not on amendment of pleadings but filing of a suit in a court without jurisdiction and seeking to transfer it to a court with jurisdiction. The Court of Appeal in that case held that:
“It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent and ultimately, all orders emanating from that suit are null and void.”
40. In the same case, the Court of Appeal cited the case of Joseph Muthee Kamau & Another v. David Mwangi Gichure & Another (2013) eKLR where it was held inter alia that jurisdiction does not operate retroactively and it must exist at the time of filing suit or latest at the commencement of hearing.
41. Similarly, my studious search for the case of David Gitome v. Invesco Assurance Co. Ltd [2018] eKLR as cited by learned counsel for the defendant did not yield such case or any result even for any other Kenyan case for the holding that:
“the power to amend cannot be exercised to cure a suit that was a nullity from the outset. The original plaintiff had no locus standi and no subsequent amendment can confer jurisdiction retroactively.”
42. As I have stated above, the position expressed by learned counsel in the above quoted remarks is correct save that I did not find any supporting decision as cited by learned counsel. Unfortunately, learned counsel did not provide copies of the cited decisions.
43. Therefore, the cases as cited by learned counsel for the defendants do not address the issue of amendment of pleadings to substitute a plaintiff and so they are not helpful herein.
44. In the case of Joseph ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago [1995] KECA 31 (KLR) the court of Appeal, citing Bullen and Leake & Jacob's Precedents of Pleading 12 th Edition stated the principles under which a court may grant leave to amend pleadings as follows:
a. that powers of the court to allow amendment is to determine the true, substantive merits of the case;
b. that amendments should be timeously applied for;
c. that the 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;
d. that the exact nature of proposed amendment sought ought to be formulated and be submitted to the other side and the court;
e. that adjournment should be given to the other side if necessary if an amendment is to be allowed;
f. that if the court is not satisfied as to the truth and substantiality of the proposed amendment it ought to be disallowed;
g. that the proposed amendment must not be immaterial or useless or merely technical;
h. that where the plaintiff's claim as originally framed is unsupportable an amendment which would leave the claim equally unsupportable will not be allowed;
i. 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;
j. 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 but subject however to powers of court to still allow such an amendment notwithstanding the expiry of current period of Limitation:
k. that the court has powers even (in special circumstances) to allow an amendment adding or substituting a new cause of action if the same 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 action by the party applying for leave to seek the amendment.
45. These parameters are not exhaustive guideposts as far as the grant of leave to amend plaints is concerned.
46. The main contention by the defendants herein is that the applicant seeks to substitute a non-entity with a corporate body with juristic personality. I do not think that in suing as Hellen Njoki Wainaina t/a Aqua Resort, the plaintiff is a non-entity. Here, the plaintiff, a human being and who is also a juristic person has added probably a business name by which the business operates. This is evident from the pleadings of both the plaintiff and the respondents that there is a business by the name of Aqua Resort which the plaintiff has pleaded that it is operated by Aqua Apartments Limited but the defendants on their part state that it is in fact operated and managed by a different company by the name of Panisi Limited.
47. The respondent through the replying affidavit sworn by Giovanni Quadrelli on 26 th March 2026 to the application for injunctive orders deposes that the plaintiff has grossly mischaracterized the subject matter of the dispute because the business known as Aqua Resort is operated and managed by Panisi Limited, a limited liability company, distinct and separate from the plaintiff. In the said affidavit, the defendants concede that the whole directorship and shareholding of Aqua Apartment Limited was transferred to the plaintiff. They at the same time maintain that in spite of the transfer of shareholding and directorship to the plaintiff they never resigned from their directorship of the company or ceded their shareholding.
48. The plaintiff has not annexed a draft amended defence to the affidavit in support of the application. However, she deposes that the plaintiff was described as "Hellen Njoki Wainaina T/A Aqua Resort" instead of the correct legal entity Aqua Apartment Limited. The intended amendment is therefore clear from that deposition.
49. By deposing that the defendants concede that the directorship and shareholding of Aqua Apartments was transferred wholly to the plaintiff, it would appear that the issue of whether or not the defendants have a st
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IN THE HIGH COURT OF KENYA AT KWALE
COMMERCIAL & TAX DIVISION
HIGH COURT COMMEFCIAL CASE NO. E001 OF 2026
(Coram: Andayi W. F., J.)
HELLEN NJOKI WAINAINA T/A AQUA RESORT…....…PLAINITFF/APPLICANT
VERSUS
EZIO MORENO GIANOLA............................................1 ST DEFENDANT/RESPONDENT
GIOVANNI QUADRELLI………………………………..2 ND DEFENDANT/RESPONDENT
RULING
1. The plaintiff herein filed suit against the defendants through a plaint dated 13 th March 2026 seeking the following orders:
a. A declaration that the plaintiff is the sole lawful shareholder and director of Aqua Apartment Limited and is entitled to exclusive possession, management, and control of the business known as Aqua Resort.
b. A permanent injunction restraining the defendants whether by themselves, their agents or servants, from interfering with the plaintiff’s management of Aqua Resort, harassing guests or representing themselves as owners or managers of the said business.
c. An order for mandatory injunction compelling the defendants to immediately vacate the business premises and hand over all books of accounts, booking records and digital access keys (including OTA/booking platform logins) to the plaintiff.
d. An order for accounts directing the defendants to provide a comprehensive audited account of all revenues, deposits and profits collected from the operations of Aqua Resort from 27 th May 2025 to the date of judgment.
e. Special damages in the sum of KShs. 31,000,000/= being unpaid management revenues and misappropriated business entitlements.
f. General damages for breach of contract, breach of fiduciary duties, and unlawful interference with business operations.
g. Interest on (5) and (6) above at court rates from the date of filing until payment in full.
h. Costs of the suit and interest thereon.
i. Any other or further relief that this Court may deem just and fit.
2. The defendants herein raised a preliminary objection dated 26 th March 2026 against the plaintiff’s suit on grounds that;
i. The plaintiff lacks the requisite locus standi to institute and maintain the suit in her own capacity as the matter raised relates to the affairs and management of Aqua Apartment Limited which is a distinct legal entity with the capacity to sue or be sued in its name,
ii. The cause of action offends the rule in Foss v Harbottle , the suit is incompetent for failing to comply with requirements governing derivative actions under the companies Act (Cap. 486) Laws of Kenya.
iii. The suit is incompetent for a non-joinder of a necessary party, Aqua Apartment Limited,
iv. The suit is defective for being filed by an unqualified person,
v. The orders sought are incapable of being enforced as they purport to affect a non- party Aqua Apartment Limited,
vi. The suit and the application are an abuse of the process of the Court.
3. The plaintiff subsequently filed a Notice of Motion dated 31 st March 2026 seeking leave to amend the plaint, the notice of motion and necessary pleadings for the name of the plaintiff to read "Aqua Apartment Limited", from "Hellen Njoki Wainaina T/A Aqua Resort."
4. The application is brought under Orders 1 Rule 10, Order 8 Rule 3 & 5 of the Civil Procedure Rules, Sections 1A, 1B & 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution of Kenya.
5. The grounds in support of the application are set out on the face of the application and expounded in the supporting affidavit sworn on 31 st March 2026 by Hellen Njoki Wainaina. They are that the plaintiff/applicant’s suit was instituted under a bona fide mistake and misdescription of the party’s name as "Aqua Resort" instead of the legal entity "Aqua Apartment Limited". That the cause of action and the substratum of the suit relate to the affairs and assets of Aqua Apartment Limited and the respondents are aware of the same. The respondents have filed a preliminary objection dated 26 th March 2026 citing this misdescription. The applicant asserts that no prejudice will be suffered by the respondents if the amendment is allowed, as the core issues of the dispute remain unchanged. It is the applicant’s plea that it is in the interest of justice and the overriding objective of this court that the matter be heard on its merits rather than being struck out on technicalities.
6. The applicant states that the indication of of the plaintiff in the plaint and other pleadings as "Hellen Njoki Wainaina t/a Aqua Resort" instead of the correct legal entity Aqua Apartment Limited arose during the drafting process where an inadvertent clerical error and misapprehension occurred. It is the applicant’s case that the clerical error prompted the respondents to file the preliminary objection dated 26 th March 2026, arguing that the suit is incompetent due to the lack of locus standi of the current named plaintiff. The applicant deposes that that this is a curable misdescription of a party and does not go to the root of the cause of action.
7. The applicant further deposes that the intended plaintiff, Aqua Apartment Limited is a distinct legal entity with the capacity to sue and be sued and it is the party whose rights are directly affected by the actions of the respondents. As such it is necessary to amend the pleadings to reflect the correct party name to ensure that the orders of this court are enforceable and to satisfy the requirements of the law.
8. The applicant concludes by stating that no prejudice will be occasioned by the respondents that cannot be compensated by an award of costs.
9. The respondents did not file any response to the application. I take it that they considered it to be a response to their preliminary objection and therefore no need for a further response.
10. The court directed that the application and the preliminary objection be argued by way of written submissions. Learned counsels for both parties filed comprehensive submissions addressing both the preliminary objection and the application.
11. Learned counsel for the applicant filed submissions dated 31 st March 2026. He submits that the issues for determination as submitted are whether the misdescription of a party is a fatal jurisdictional defect or a curable technicality and whether the application for amendment should take precedence over the preliminary objection to facilitate substantive justice.
12. On the first issue counsel submitted that reference to the plaintiff as “Aqua Resort” instead of “Aqua Apartment Limited” was a bona fide clerical error and not lack of a cause of action. Counsel relied on the case of Central Kenya Limited v. Trust Bank Ltd & 4 Others [1996] eKLR. Learned counsel submits that where the Court of Appeal held in that case that a misdescription of a party does not make the suit a nullity if the intended party is identifiable and the error is a mere slip of the pen. I have checked out the several cases on the kenyalaw website but I am unable to find that holding in any of them. The correct citation of a case that deals with the issue of amendment of pleadings is Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] KECA 367 (KLR) where the Court of Appeal held that:
“... the guiding principle in applications for leave to amend is that all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs (see, Beoco Ltd v. Alfa Laval Co. Ltd [1994]4 ALL ER. 464).”
13. On the second issue, learned counsel submitted that the court has wide discretionary powers to allow amendments at any stage of the proceedings to ensure that the real questions in controversy are determined. Learned counsel has relied on the case of Samuel Matunde Muchina v Samuel Kiptoo Ruto & 9 others [2020] KEELC 1037 (KLR) and submits that the case confirms that where a suit is commenced in the name of the wrong plaintiff due to a bona fide mistake the court may order substitution. Once again, checking out this decision on the new.kenyalaw.org website I do not find any such holding in that case. The related case of Samuel Kiptoo Ruto & 9 others v Samuel Matunde Muchina [2020] KECA 120 (KLR) was an appeal to the Court of Appeal and it was not dealing with the issue of amendment of pleadings. A related case that dealt with the issue of amendment is Samuel Matunde Muchina v Samuel Kiptoo Ruto & 9 others; Joshua Kirwa Bett (Suing as the Power of Attorney for Priscilla Jebungei Kirwa) & 7 others (Interested Parties/Applicants) [2020] eKLR . In that case, the court was dealing with the issue of joinder of a party and it held that Order 1 Rule (10) (2) CPR contemplates an application for amendment or joinder of parties where proceedings are still pending before the Court. The court declined the application for joinder, finding that the matter was concluded and a judgment rendered.
14. Learned counsel submitted that the respondents have already identified Aqua Apartment Limited as the “necessary party” to the proceedings and so they are not taken by surprise and their defence remains intact. Further, that the error is one of form rather than substance and that the dispute remains the management and assets of the company.
15. Counsel submitted that the preliminary objection seeks to terminate a legitimate claim on a technicality whereas the application for amendment seeks to bring harmony to the pleadings and facts. Counsel urged the court to allow the application for amendment and dismiss the preliminary objection with costs.
16. Learned counsel for the respondents filed submissions dated 8 th April 2026 in support of the preliminary objection and in response to the applicant’s application. Counsel submitted that naming Hellen Njoki Wainanina t/a Aqua Resort as the plaintiff instead of Aqua Apartment Limited is a fundamental mischaracterization. Learned counsel cited the Court of appeal case of Kassam v. Bank of Baroda (India) [2002]1EA 148 , for the holding that a misnomer arises where the correct party is before the court while substitution occurs where an entirely different party seeks to be brought in to the suit. Unfortunately, I was not able to lay my hands on that authority immediately and learned counsel has not provided a copy thereof.
17. Learned counsel submitted that the suit as filed offends the rule in Foss v Harbottle (1843) 2 Hare 461, 67 ER 189 , on derivative actions as the applicant had filed the suit in her personal capacity and not as the company, seeking reliefs against the respondents in relation to management and assets of Aqua Apartment Limited and that the applicant has not made any submissions on the same. Learned counsel has cited the case of Mwangi v. Gachiri & Another [2020] eKLR such that a director cannot sue in their personal capacity over company assets without complying with the derivative action provisions. I did not however find this decision on new.kenyalaw.org website. Learned counsel submitted that the applicant has not shown that the directors of the company are unwilling to sue; that leave of the court was obtained under section 239 of the Companies Act; that notice was given to the company under section 240 of the Companies Act and also has not provided an undertaking as to costs under section 242 (4) of the Companies Act 2015.
18. On Article 159 (2) (d) of the constitution counsel submitted that the lack of locus standi is a jurisdictional issue and not a technicality. He supported that submission with the case of Nicholas Kiptoo Arap Korir Salt v. IEBC & 7 others [2014] eKLR, for the holidng that article 159(2)(d) is not a panacea for all procedural lapses and it cannot be invoked to cure a nullity or to confer jurisdiction where non exists. Further that in the case of Raila Odinga v. IEBC [2017] eKLR, the Supreme Court held that technicalities that go to the root of jurisdiction cannot be waived under the guise of substantive justice.
19. Learned counsel submits that the issue of locus standi in this case is a jurisdictional question and not a procedural technicality. He said the case of Phoenix of E.A Assurance Co. Ltd. V. M. Thiga t/a Newspaper Service [1988] KLR 156 where the Court of Appeal held that a suit filed by a person without capacity is a nullity ab initio – not a technical defect but a fundamental jurisdictional failure.
20. Counsel further submitted that though the court has wide discretion to order an amendment the powers are not unlimited. The court in the case of David Gitome v. Invesco Assurance Co. Ltd [2028] eKLR, refused to allow an amendment substituting a trading name with a registered company. Counsel submitted the preliminary objection was properly before the court. Counsel submitted that Order 1 Rule 10 of the Civil Procedure Rules allows for joinder of a necessary party and not deleting the only plaintiff to substitute with a different legal entity.
21. Learned counsel submitted that the failure to join Aqua Apartments Ltd who are a necessary party to the suit makes it incompetent and that in the present case the only plaintiff is sought to be deleted and an entirely different legal entity substituted after the preliminary objection was filed. He cited the case of Amrital Chimanlal Shah v. Revabhai Lallubhai [1943] 18 KLR 35 for the holding that where a necessary party is not joined the suit is incompetent.
22. On prejudice to be suffered by the defendants learned counsel submitted that, the defendants have incurred costs in preparing the preliminary objection and they will lose a valid jurisdictional defence that had crystallized at the time of filing. That the defendants will now be forced to defend a suit brought by an entirely different party and also the defendants will be subjected to the risk if double litigation if the amendment is allowed.
23. Counsel contends that the application was not filed promptly. It was brought after the Preliminary Objection was filed to evade consequences of a fatal defect. Reliance was placed on the case of Eastern Bakery v. Castelion [1958] EA 461 .
24. Learned counsel for the defendants urged the court to dismiss the applicant’s Notice of Motion dated 31 st March 2026 and the supporting submissions with costs and to allow the preliminary objection and strike out the plaintiff’s suit with costs to the defendants.
25. I have considered the application and the submissions by learned counsels. The issues for determination framed by the court are as follows:
i. Whether the application for amendment takes precedence over the preliminary objection.
ii. Whether the preliminary objection is merited.
iii. Whether the applicant is entitled to the orders sought in the application.
26. This court appreciates that the nature of a preliminary objection is such that once it is raised, and argued it has the effecting of disposing of the entire suit. However, for the interests of dispensation of justice the court directed that both the Preliminary Objection and the application for amendment be disposed of simultaneously to save on the Courts time.
27. What constitues a Preliminary Objection was set out in the case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] E.A 696 where the court defined it as follows:
As per Law J.A:
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”
As per Sir Charles Newbold P:
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
28. The High Court Prof. J.B. Ojwang. J (as he then was) in the case of Oraro v Mbajja [2005] e KLR explained a preliminary objection thus:
“I think the principle is abundantly clear. A preliminary objection, correctly understood is now well identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. I am in agreement...that where a court needs to investigate facts, a matter cannot be raised as a preliminary point.?
29. The applicant’s response to the preliminary objection was to file an application to seek leave of the court to amend the plaint so as to cite the correct plaintiff, terming the initial party as an error. The respondent submits that this was not a mere misdescription of the plaintiff but a mischaracterization which then was a fundamental error. Further that Order 1 Rule 10 CPR allows for joinder of a necessary party but not to delete the plaintiff and substitute an entirely different legal entity.
30. The application was therefore the plaintiff’s answer to the preliminary objection and thus the court’s decision to consider both of them at once.
31. It has been held in numerous decisions that striking out a pleading is a draconian remedy that the court should be slow to employ and only in cases where the pleading is shown to be clearly untenable. That the court should aim to sustain rather than to summarily terminate a suit in order to give each party an opportunity to present its case for the court’s consideration and thereby render justice. The leading authority on this issue is the case of DT Dobie & Company (Kenya) Ltd v Muchina & another [1980] KECA 3 (KLR) where the issue was exyensivey discussed by Madan, J.A. who held that:
“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”
32. Reiterating the above position in the case of Blue Shield Insurance Company Ltd v Joseph Mboya Oguttu [2009] KECA 221 (KLR) the Court of Appeal observed that although what was before Madan, J. A. in the Muchina case above cited was an application seeking striking out a plaint on grounds that it did not disclose a reasonable cause of action against the defendant, he nonetheless dealt with broad principles which in effect covered all other aspects where striking out a pleading or part of a pleading is sought.
33. In view of those principles it behooves this court to consider the application for amendment first before considering the preliminary objection to the suit.
34. On the issue of amendment of the plaint, the general power to amend pleadings is provided for under Section 100 of the Civil Procedure Act (Cap. 21) Laws of Kenya 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."
35. On the particular issue raised herein on the substitution or addition of a party, Order 1 Rule 10(1) and (2) of the of the Civil Procedure Rules provides for the same as follows:
(1) Where a suit has been instituted in the name of the wrong persons as plaintiff, or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as plaintiff upon such terms as the court thinks fit.
(2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.
36. Further Order 8 Rules 1, 3 and 4 of the Civil Procedure Rules provide 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.
...
(3) An amendment to correct the name of a party may be allowed under subrule (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.
(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.
37. Further, Order 8, Rule 5 of the Civil Procedure Rules gives the court the general power to amend pleadings as follows:
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.
38. The foregoing provisions on amendment of pleadings show that a court has wide discretionary power to look at all pleadings and satisfy itself that they can sustain a cause of action and where there is need for amendment to sustain the cause of action, either on its own motion or on application by a party, the same should be granted. This includes substitution of the parties to the suit.
39. The defendants’ contention is that the applicant had no capacity to institute the suit in the first place and so cannot purport to substitute the correct party. The defendants rely on a case cited as Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [1988] KLR for the holding that a suit filed by a person without capacity is a nullity ab initio and not a technical defect but a fundamental jurisdictional failure. Whereas, the position as expressed by learned counsel is correct in law, so that, for instance, where a suit is purported to be filed by a person who is since deceased at the time of filing, the same is a nullity and cannot be cured by amendment, the citation of the case above is wrong and in the correct citation which is Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR) , the issue was not on amendment of pleadings but filing of a suit in a court without jurisdiction and seeking to transfer it to a court with jurisdiction. The Court of Appeal in that case held that:
“It is clear from the foregoing that the claim by the respondent was filed before a court devoid of jurisdiction. The suit was a nullity ab initio and was not transferable to another court; jurisdiction cannot be conferred by consent and ultimately, all orders emanating from that suit are null and void.”
40. In the same case, the Court of Appeal cited the case of Joseph Muthee Kamau & Another v. David Mwangi Gichure & Another (2013) eKLR where it was held inter alia that jurisdiction does not operate retroactively and it must exist at the time of filing suit or latest at the commencement of hearing.
41. Similarly, my studious search for the case of David Gitome v. Invesco Assurance Co. Ltd [2018] eKLR as cited by learned counsel for the defendant did not yield such case or any result even for any other Kenyan case for the holding that:
“the power to amend cannot be exercised to cure a suit that was a nullity from the outset. The original plaintiff had no locus standi and no subsequent amendment can confer jurisdiction retroactively.”
42. As I have stated above, the position expressed by learned counsel in the above quoted remarks is correct save that I did not find any supporting decision as cited by learned counsel. Unfortunately, learned counsel did not provide copies of the cited decisions.
43. Therefore, the cases as cited by learned counsel for the defendants do not address the issue of amendment of pleadings to substitute a plaintiff and so they are not helpful herein.
44. In the case of Joseph ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago [1995] KECA 31 (KLR) the court of Appeal, citing Bullen and Leake & Jacob's Precedents of Pleading 12 th Edition stated the principles under which a court may grant leave to amend pleadings as follows:
a. that powers of the court to allow amendment is to determine the true, substantive merits of the case;
b. that amendments should be timeously applied for;
c. that the 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;
d. that the exact nature of proposed amendment sought ought to be formulated and be submitted to the other side and the court;
e. that adjournment should be given to the other side if necessary if an amendment is to be allowed;
f. that if the court is not satisfied as to the truth and substantiality of the proposed amendment it ought to be disallowed;
g. that the proposed amendment must not be immaterial or useless or merely technical;
h. that where the plaintiff's claim as originally framed is unsupportable an amendment which would leave the claim equally unsupportable will not be allowed;
i. 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;
j. 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 but subject however to powers of court to still allow such an amendment notwithstanding the expiry of current period of Limitation:
k. that the court has powers even (in special circumstances) to allow an amendment adding or substituting a new cause of action if the same 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 action by the party applying for leave to seek the amendment.
45. These parameters are not exhaustive guideposts as far as the grant of leave to amend plaints is concerned.
46. The main contention by the defendants herein is that the applicant seeks to substitute a non-entity with a corporate body with juristic personality. I do not think that in suing as Hellen Njoki Wainaina t/a Aqua Resort, the plaintiff is a non-entity. Here, the plaintiff, a human being and who is also a juristic person has added probably a business name by which the business operates. This is evident from the pleadings of both the plaintiff and the respondents that there is a business by the name of Aqua Resort which the plaintiff has pleaded that it is operated by Aqua Apartments Limited but the defendants on their part state that it is in fact operated and managed by a different company by the name of Panisi Limited.
47. The respondent through the replying affidavit sworn by Giovanni Quadrelli on 26 th March 2026 to the application for injunctive orders deposes that the plaintiff has grossly mischaracterized the subject matter of the dispute because the business known as Aqua Resort is operated and managed by Panisi Limited, a limited liability company, distinct and separate from the plaintiff. In the said affidavit, the defendants concede that the whole directorship and shareholding of Aqua Apartment Limited was transferred to the plaintiff. They at the same time maintain that in spite of the transfer of shareholding and directorship to the plaintiff they never resigned from their directorship of the company or ceded their shareholding.
48. The plaintiff has not annexed a draft amended defence to the affidavit in support of the application. However, she deposes that the plaintiff was described as "Hellen Njoki Wainaina T/A Aqua Resort" instead of the correct legal entity Aqua Apartment Limited. The intended amendment is therefore clear from that deposition.
49. By deposing that the defendants concede that the directorship and shareholding of Aqua Apartments was transferred wholly to the plaintiff, it would appear that the issue of whether or not the defendants have a st
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