[1] Before the Court for determination is the Notice of Motion dated 22 nd February 2022. The application was filed by the plaintiff, Ibrahim Benedict Omollo under Articles 48, 50(1), 159(2) and 165 of the Constitution of Kenya; Sections 1A, 1B, 3, 3A and 63(4) of the Civil Procedure Act, Cap 21 of the Laws of Kenya; and Order 1 Rule 10(2), Order 8 Rule 3 and Order 51 Rules 1, 2 and 4 of the Civil Procedure Rules, 2010, for the following orders:
[a] That the Court be pleased to grant leave and/or liberty to the plaintiff/applicant to amend the Plaint dated 20 th September 2017.
[b] That upon such leave being granted, the Amended Plaint annexed to the application be deemed as duly filed and served upon payment of the requisite fees.
[c] That costs of the application be in the cause.
[2] The application was premised on the grounds that the plaintiff filed the instant suit against the defendant on the 20 th September 2017 and thereupon instructed counsel to represent him. Thereafter, upon perusal of the pleadings and the documents filed herein, it became necessary for the Plaint to be amended so that the Court can effectually adjudicate over the dispute. The plaintiff further stated that the proposed amendment is intended to bring on board another party of interest so as to avoid multiplicity of suits.
[3] The application was supported by the affidavit of the plaintiff sworn on 22 nd February 2022, in which he reiterated the grounds aforementioned and averred that the amendment proposed is in the interest of justice. He annexed thereto a copy of the draft Amended Plaint as well as a copy of his Title Deed for LR NO. CENTRAL KASIPUL/KAMUMA/4605 in proof of his proprietorship of the subject property.
[4] The defendant, Equity Bank (K) Limited , opposed the application vide its Grounds of Opposition dated 22 nd August 2022. The defendant thereby contended that:
[a] The application does not meet the evidentiary threshold for issuance of the orders sought and is therefore an affront to Article 50 of the Constitution.
[b] Despite the assertions by the applicant that the matter had not proceeded to hearing, the plaintiff’s case was heard and closed on 4 th February 2020, after which the defence case was heard on 31 st January 2022 and 13 th July 2022.
[c] The grounds upon which the application is anchored do not raise any exceptional circumstances to warrant granting of the orders prayed for.
[d] There has been inordinate delay in filing the application which will occasion injustice to the defendant.
[e] The application is an afterthought and shall prejudice the defendant’s defence.
[5] The application was canvassed by way of written submissions, pursuant to the directions given herein on 29 th September 2025. The plaintiff relied on his written submissions dated 27 th January 2026 and contended that amendments can be allowed at any stage of the proceedings should justifiable cause be shown to warrant such amendment. He reiterated his averments that he is the registered proprietor of the property known as LR NO. CENTRAL KASIPUL/KAMUMA/4605. He reiterated that the said facility was given, not to him as an individual, but to the proposed 2 nd plaintiff, Civil Trust Engineering and Construction Ltd.
[6] It was therefore the submission of the plaintiff that this suit cannot be effectually determined in the absence of the proposed 2 nd plaintiff. He relied on Machakos ELC Case No. 391 of 2019: Andrew Omboto & 3 others v Board of Trustees, National Social Security Fund & 5 others as to the object of amendment. In his view, the defendant will not suffer any prejudice because the proposed amendment is intended to bring out the real questions in controversy for an effectual determination to avoid multiplicity of suits.
[7] In its written submissions dated 5 th January 2026, the defendant addressed the following issues:
[a] The legal threshold for granting leave to amend pleadings at an advanced stage of the proceedings;
[b] The effect of inordinate delay and the risk of prejudice to the opposing party;
[c] The absence of any exceptional circumstances to justify the late amendment;
[d] The significance of the current stage of the proceedings; and
[e] The principle that amendments should not be used to re-litigate matters or cure defects after a party has had full opportunity to present its case.
[8] The defendant addressed the Court on the general discretion to allow amendments at any stage of the proceedings for the purpose of determining the real questions in controversy between the parties as provided for in Order 8 Rule 3(1) of the Civil Procedure Rules. It pointed out that the discretion is not absolute, and must be exercised judiciously and in accordance with established principles. The defendant relied on the decision of the Court of Appeal in Ochieng v First National Bank of Chicago [1995] eKLR to underscore their submission that the court must ensure the true substantive merits of each application.
[9] In particular, the defendant submitted that the timing of the plaintiff’s application is highly suspect and prejudicial granted that the case has been ongoing for the last 7 years and the plaintiff has presented their respective cases to conclusion. It urged the Court to find that the application for amendment has been brought after inordinate delay for which no plausible explanation was given by the plaintiff. The defendant posited that the plaintiff is merely interested in curing the deficiencies in the case already presented or introducing a new cause of action after seeing the weaknesses in their evidence.
[10] The defendant also argued that, since the plaintiff has not demonstrated any exceptional or new circumstances whatsoever, his application does not meet the requisite threshold for a late amendment. In this regard, the defendant relied on Kariuki Githii v Royal Media Services Ltd [2009] eKLR and Kenya Oil Co. Ltd v Jayantilal Dharamshi Gosrani, Civil Case No. 126 of 2013, among other authorities to buttress its submissions. The defendant also addressed the Court on the prejudice that it stands to suffer should the amendment be allowed and the need for certainty and finality in litigation. Hence, the defendant prayed for the dismissal of the application with costs.
[11] I have given careful consideration to the plaintiff’s application, the averments in the Supporting Affidavit as well as the Grounds of Opposition filed in response thereto by the defendant. I have likewise paid attention to the written submissions filed herein by learned counsel on behalf of the parties and the authorities relied on by them. There is no gainsaying that the discretion to grant leave to amend pleading is indeed a wide one. Order 8 Rules 3(1) of the Civil Procedure Rules , is explicit that:
"...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."
[12] The rationale for amendment of pleadings need not be belaboured; it is so that the Court can effectively and effectually determine the issues in controversy between the parties to the suit. In Nyamodi Ochieng Nyamogo v Kenya Posts and Telecommunication Corporation [2007] eKLR, for instance, it was held that:
"The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between the parties is conducted not on false hypothesis of the facts already claimed but rather on the basis of the true state of facts or relief or remedy which the parties really and finally intend to rely on or to claim."
[13] What, then, are the principles that guide the exercise of discretion in an application of this nature? In Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited (supra), the Court of Appeal took the following view of the matter:
“The law on amendment of pleading … was summarized by this Court, quoting from Bullen and Leake & Jacob’s Precedents of Pleading – 12th Edition, in the case of Joseph Ochieng & 2 others vs. First National Bank of Chicago, Civil Appeal No. 149 of 1991 as follows:-
“The ratio that emerges out of what was quoted from the said book is that powers of the court to allow amendment is to determine the true, substantive merits of the case; amendments should be timeously applied for; 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; that the proposed amendment must not be immaterial or useless or merely technical; 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; 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.” (see also Central Kenya Ltd vs. Trust Bank Ltd & 5 Others [2000] eKLR)
[14] Hence, the issues that emerge for determination can be summarised as hereunder:
[a] Whether the proposed amendment is necessary and sought in good faith;
[b] Whether the proposed amendment will be prejudicial to the defendant;
[c] Whether the application for leave to amend was brought without undue delay;
[15] On whether the proposed amendment is necessary and sought in good faith, the plaintiff explained that the subject loan was not taken by him but by the proposed 2 nd plaintiff, a limited liability company. His averment was not refuted, noting that the defendant opted to file Grounds of Opposition as opposed to a Replying Affidavit. I am therefore satisfied, on the basis of the material presented by the plaintiff, that the proposed amendment is necessary and has been made in good faith.
[16] On whether the defendant will be prejudiced by the proposed amendment, the main concern of the defendant appears to be that the application has been made late in the day, after the plaintiff had already presented and closed its case, and the defence case part-heard. However, as pointed out herein above, Rule 3 of Order 8 envisages that amendments can be made at any stage of the proceedings if warranted; and in the instant case, no prejudice will be suffered by the defendant as it is yet to prosecute its case to conclusion.
[17] Indeed, Subrule (5) of Rule 3 stipulates that:
“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.”
[18] Moreover, Rule 3(2) of Order 8, Civil Procedure Rules , recognizes that:
“Where an application to the court for leave to make an amendment such as is mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just so to do.”
[19] Consequently, I am persuaded by the expressions of Lord Denning in Mitchell v Harris Engineering Co. [1967] 2 QB 703 at page 718 that:
“Some of the judges in those cases spoke of the Defendant having a “right” to the benefit of the Statute of Limitations; and said that the “right” should not be taken away from him by amendment of the writ. But I do not think that was quite correct. The Statute of Limitations does not confer any right on the Defendant. It only imposes a time limit on the Plaintiff. Take the statute here in question. It is Section 2 of the Limitation Act, 1954. It says that in the case of actions for damages for personal injuries for negligence, nuisance or breach of duty “the action shall not be brought” after the expiration of three years from the date on which the cause of action accrued. In order to satisfy the statute, the Plaintiff must issue his writ within three years from the date of the accident. But there is nothing in the statute which says that the writ must at that time be perfect and free from defects. Even if it is defective, nevertheless the Court may, as a matter of practice, permit him to amend it. Once it is amended, then the writ as amended speaks from the date on which the writ was originally issued and not from the date of the amendment. The defect is cured and the action is brought in time. It is not barred by statute…”
[20] Lastly, in Institute For Social Accountability & Another vs. Parliament of Kenya & 3 Others [2014] eKLR wherein a three-judge bench held that:
“The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings.”
[21] Indeed, as aptly pointed out by Apaloo, JA in Philip Chemwolo vs. Augustine Kubende [1985] KLR 492, the duty of the Court is to do justice to the parties and not to punish them for their mistakes or omissions. The Learned Judge expressed his viewpoint thus:
“I think the broad equity approach to this matter, is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The Court, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.”
[22] In the result, it is my finding that the plaintiff's application dated 22 nd February 2022 is meritorious. The same is hereby allowed and orders granted as prayed in the following terms:
[a] That leave be and is hereby granted to the plaintiff to amend his Plaint in terms of the draft Amended Plaint annexed to the Supporting Affidavit herein.
[b] That the Amended Plaint be filed and served within 14 days from the date hereof; with corresponding leave to the defendant to amend its Defence, if need be within 14 days of such service.
[c] That the costs of the application be borne by the plaintiff in any event.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 18 TH DAY OF JUNE, 2026
[a] That the Court be pleased to grant leave and/or liberty to the plaintiff/applicant to amend the Plaint dated 20 th September 2017.
[b] That upon such leave being granted, the Amended Plaint annexed to the application be deemed as duly filed and served upon payment of the requisite fees.
[c] That costs of the application be in the cause.
[2] The application was premised on the grounds that the plaintiff filed the instant suit against the defendant on the 20 th September 2017 and thereupon instructed counsel to represent him. Thereafter, upon perusal of the pleadings and the documents filed herein, it became necessary for the Plaint to be amended so that the Court can effectually adjudicate over the dispute. The plaintiff further stated that the proposed amendment is intended to bring on board another party of interest so as to avoid multiplicity of suits.
[3] The application was supported by the affidavit of the plaintiff sworn on 22 nd February 2022, in which he reiterated the grounds aforementioned and averred that the amendment proposed is in the interest of justice. He annexed thereto a copy of the draft Amended Plaint as well as a copy of his Title Deed for LR NO. CENTRAL KASIPUL/KAMUMA/4605 in proof of his proprietorship of the subject property.
[4] The defendant, Equity Bank (K) Limited , opposed the application vide its Grounds of Opposition dated 22 nd August 2022. The defendant thereby contended that:
[a] The application does not meet the evidentiary threshold for issuance of the orders sought and is therefore an affront to Article 50 of the Constitution.
[b] Despite the assertions by the applicant that the matter had not proceeded to hearing, the plaintiff’s case was heard and closed on 4 th February 2020, after which the defence case was heard on 31 st January 2022 and 13 th July 2022.
[c] The grounds upon which the application is anchored do not raise any exceptional circumstances to warrant granting of the orders prayed for.
[d] There has been inordinate delay in filing the application which will occasion injustice to the defendant.
[e] The application is an afterthought and shall prejudice the defendant’s defence.
[5] The application was canvassed by way of written submissions, pursuant to the directions given herein on 29 th September 2025. The plaintiff relied on his written submissions dated 27 th January 2026 and contended that amendments can be allowed at any stage of the proceedings should justifiable cause be shown to warrant such amendment. He reiterated his averments that he is the registered proprietor of the property known as LR NO. CENTRAL KASIPUL/KAMUMA/4605. He reiterated that the said facility was given, not to him as an individual, but to the proposed 2 nd plaintiff, Civil Trust Engineering and Construction Ltd.
[6] It was therefore the submission of the plaintiff that this suit cannot be effectually determined in the absence of the proposed 2 nd plaintiff. He relied on Machakos ELC Case No. 391 of 2019: Andrew Omboto & 3 others v Board of Trustees, National Social Security Fund & 5 others as to the object of amendment. In his view, the defendant will not suffer any prejudice because the proposed amendment is intended to bring out the real questions in controversy for an effectual determination to avoid multiplicity of suits.
[7] In its written submissions dated 5 th January 2026, the defendant addressed the following issues:
[a] The legal threshold for granting leave to amend pleadings at an advanced stage of the proceedings;
[b] The effect of inordinate delay and the risk of prejudice to the opposing party;
[c] The absence of any exceptional circumstances to justify the late amendment;
[d] The significance of the current stage of the proceedings; and
[e] The principle that amendments should not be used to re-litigate matters or cure defects after a party has had full opportunity to present its case.
[8] The defendant addressed the Court on the general discretion to allow amendments at any stage of the proceedings for the purpose of determining the real questions in controversy between the parties as provided for in Order 8 Rule 3(1) of the Civil Procedure Rules. It pointed out that the discretion is not absolute, and must be exercised judiciously and in accordance with established principles. The defendant relied on the decision of the Court of Appeal in Ochieng v First National Bank of Chicago [1995] eKLR to underscore their submission that the court must ensure the true substantive merits of each application.
[9] In particular, the defendant submitted that the timing of the plaintiff’s application is highly suspect and prejudicial granted that the case has been ongoing for the last 7 years and the plaintiff has presented their respective cases to conclusion. It urged the Court to find that the application for amendment has been brought after inordinate delay for which no plausible explanation was given by the plaintiff. The defendant posited that the plaintiff is merely interested in curing the deficiencies in the case already presented or introducing a new cause of action after seeing the weaknesses in their evidence.
[10] The defendant also argued that, since the plaintiff has not demonstrated any exceptional or new circumstances whatsoever, his application does not meet the requisite threshold for a late amendment. In this regard, the defendant relied on Kariuki Githii v Royal Media Services Ltd [2009] eKLR and Kenya Oil Co. Ltd v Jayantilal Dharamshi Gosrani, Civil Case No. 126 of 2013, among other authorities to buttress its submissions. The defendant also addressed the Court on the prejudice that it stands to suffer should the amendment be allowed and the need for certainty and finality in litigation. Hence, the defendant prayed for the dismissal of the application with costs.
[11] I have given careful consideration to the plaintiff’s application, the averments in the Supporting Affidavit as well as the Grounds of Opposition filed in response thereto by the defendant. I have likewise paid attention to the written submissions filed herein by learned counsel on behalf of the parties and the authorities relied on by them. There is no gainsaying that the discretion to grant leave to amend pleading is indeed a wide one. Order 8 Rules 3(1) of the Civil Procedure Rules , is explicit that:
"...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."
[12] The rationale for amendment of pleadings need not be belaboured; it is so that the Court can effectively and effectually determine the issues in controversy between the parties to the suit. In Nyamodi Ochieng Nyamogo v Kenya Posts and Telecommunication Corporation [2007] eKLR, for instance, it was held that:
"The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between the parties is conducted not on false hypothesis of the facts already claimed but rather on the basis of the true state of facts or relief or remedy which the parties really and finally intend to rely on or to claim."
[13] What, then, are the principles that guide the exercise of discretion in an application of this nature? In Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited (supra), the Court of Appeal took the following view of the matter:
“The law on amendment of pleading … was summarized by this Court, quoting from Bullen and Leake & Jacob’s Precedents of Pleading – 12th Edition, in the case of Joseph Ochieng & 2 others vs. First National Bank of Chicago, Civil Appeal No. 149 of 1991 as follows:-
“The ratio that emerges out of what was quoted from the said book is that powers of the court to allow amendment is to determine the true, substantive merits of the case; amendments should be timeously applied for; 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; that the proposed amendment must not be immaterial or useless or merely technical; 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; 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.” (see also Central Kenya Ltd vs. Trust Bank Ltd & 5 Others [2000] eKLR)
[14] Hence, the issues that emerge for determination can be summarised as hereunder:
[a] Whether the proposed amendment is necessary and sought in good faith;
[b] Whether the proposed amendment will be prejudicial to the defendant;
[c] Whether the application for leave to amend was brought without undue delay;
[15] On whether the proposed amendment is necessary and sought in good faith, the plaintiff explained that the subject loan was not taken by him but by the proposed 2 nd plaintiff, a limited liability company. His averment was not refuted, noting that the defendant opted to file Grounds of Opposition as opposed to a Replying Affidavit. I am therefore satisfied, on the basis of the material presented by the plaintiff, that the proposed amendment is necessary and has been made in good faith.
[16] On whether the defendant will be prejudiced by the proposed amendment, the main concern of the defendant appears to be that the application has been made late in the day, after the plaintiff had already presented and closed its case, and the defence case part-heard. However, as pointed out herein above, Rule 3 of Order 8 envisages that amendments can be made at any stage of the proceedings if warranted; and in the instant case, no prejudice will be suffered by the defendant as it is yet to prosecute its case to conclusion.
[17] Indeed, Subrule (5) of Rule 3 stipulates that:
“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.”
[18] Moreover, Rule 3(2) of Order 8, Civil Procedure Rules , recognizes that:
“Where an application to the court for leave to make an amendment such as is mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just so to do.”
[19] Consequently, I am persuaded by the expressions of Lord Denning in Mitchell v Harris Engineering Co. [1967] 2 QB 703 at page 718 that:
“Some of the judges in those cases spoke of the Defendant having a “right” to the benefit of the Statute of Limitations; and said that the “right” should not be taken away from him by amendment of the writ. But I do not think that was quite correct. The Statute of Limitations does not confer any right on the Defendant. It only imposes a time limit on the Plaintiff. Take the statute here in question. It is Section 2 of the Limitation Act, 1954. It says that in the case of actions for damages for personal injuries for negligence, nuisance or breach of duty “the action shall not be brought” after the expiration of three years from the date on which the cause of action accrued. In order to satisfy the statute, the Plaintiff must issue his writ within three years from the date of the accident. But there is nothing in the statute which says that the writ must at that time be perfect and free from defects. Even if it is defective, nevertheless the Court may, as a matter of practice, permit him to amend it. Once it is amended, then the writ as amended speaks from the date on which the writ was originally issued and not from the date of the amendment. The defect is cured and the action is brought in time. It is not barred by statute…”
[20] Lastly, in Institute For Social Accountability & Another vs. Parliament of Kenya & 3 Others [2014] eKLR wherein a three-judge bench held that:
“The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings.”
[21] Indeed, as aptly pointed out by Apaloo, JA in Philip Chemwolo vs. Augustine Kubende [1985] KLR 492, the duty of the Court is to do justice to the parties and not to punish them for their mistakes or omissions. The Learned Judge expressed his viewpoint thus:
“I think the broad equity approach to this matter, is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The Court, as is often said, exists for the purpose of deciding the rights of the parties and not for the purpose of imposing discipline.”
[22] In the result, it is my finding that the plaintiff's application dated 22 nd February 2022 is meritorious. The same is hereby allowed and orders granted as prayed in the following terms:
[a] That leave be and is hereby granted to the plaintiff to amend his Plaint in terms of the draft Amended Plaint annexed to the Supporting Affidavit herein.
[b] That the Amended Plaint be filed and served within 14 days from the date hereof; with corresponding leave to the defendant to amend its Defence, if need be within 14 days of such service.
[c] That the costs of the application be borne by the plaintiff in any event.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 18 TH DAY OF JUNE, 2026