KAVITHE MUSYOKA AND ESTHER MUTWII (Minor suing through his father and next friend ROBINSON MUTWI) AND 3 Others VS BENARD MWENDWA MUNYAS & 2 OTHERS

INTRODUCTION

The Appellant’s herein vide a notice of motion Application dated 7^th February, 2023 filed under Order 8 Rules 3(1), (2) And (5) Rule 5 and Order I Rule 10 of the Civil Procedure Rules, 2010, And Section 100, Civil Procedure Act Cap 21 Laws of Kenya seeking the following orders

1. Leave to amend the Plaints filed in their respective Plaints herein in the manner as set out in the Amended Plaint annexed to the Application.
2. The Amended Plaints be deemed to have been duly filed upon payment of the requisite filing fees.
3. Leave to the Appellants to call further evidence in support of their respective cases against the Respondents and/or substituted Respondents.
4. Costs of this Application be provided for.

The Application was supported by the grounds on the face of the Application and an affidavit sworn by their learned counsel Mr. RANDOLPH M. TINDIKA the learned counsel averred that his firm filed various plaints on behalf of the plaintiff against the Respondents and sought prayers enumerated therein.

The learned counsel averred too that the matters proceeded for hearing and subsequently a Judgement was delivered on the 2^nd May, 2018 wherein all the suits were dismissed and thus the appellants filed this appeal.

The learned counsel equally averred that in the process of preparing the hearing of this Appeal, it dawned on them that they had missed the registration number of one of the motor vehicles involved in the accident which omission they felt would greatly affect the determination of the matter.

The learned counsel contended too that the amendments sought are to correct the registration number of one of the motor vehicles involved in the accident herein from KAQ 954Q to KAQ 954P as per  in the draft Amended Plaints.

He decried that the mistake was caused by an oversight on part of the Counsels for the Appellants, but was also amplified by the fact that some of the Police Abstracts issued indicated the said wrong registration number of the motor vehicle.

He underscored that the Amendments sought are crucial to the determination of the real issues at controversy between the parties herein and the same will enable this Honourable Court to conclusively determine all the issues in controversy between the parties.

It was his contention too that amendments sought, if granted, will occasion no prejudice to the Defendants in any way and any inconvenience occasioned, if at all, can be adequately compensated by an award for costs. It was his averment further that owing to the said amendments, there will be need to call further evidence by the Appellants, and thus beseeched this Court to re-open the case herein and allow the Appellants to give further evidence in support of their case.

The learned counsel also averred that that this Court has jurisdiction and discretion to allow the Application and has a mandate to ensure that of justice is administered to all the parties especially the Appellants in their pursuit of their respective claims arising from the accident that was occasioned by the vehicle belonging to the Respondents.

The learned counsel decried that he was unable to trace the Appellants for the purpose of signing the Affidavit in support of the application.  He however, contended that he was more versed with the issues in the Application and thus the proper person to swear the Affidavit.

Opposing the application, the respondent filed grounds opposition on 30^th May 2023 wherein they stated that: -

1. The application is misconceived, fatally defective, bad in law, incompetent and otherwise a gross abuse of the court process.
2. The application seeks omnibus prayers that are incapable of being granted, lacks merit and the same ought to be dismissed with costs.
3. This Court sitting as an Appeal Court has no jurisdiction to grant the orders sought.
4. The suit before the trial court was dismissed and the same has not been reinstated and therefore the application by the Appellants to amend the Plaint filed before the Trial court is a gross abuse of the Court process and is filed contrary to mandatory provision of the Civil Procedure Rules.
5. The intended additional evidence is an afterthought and an attempt by the Appellants to patch up their case on Appeal stage.
6. The Application is an afterthought nearly meant to frustrate and/or delay the hearing and determination of the appeal which Appeal is unmerited, not arguable and has no chances of success.
7. The Application is ill-conceived and is otherwise unsustainable in law and be dismissed with costs.

This court directed that the Application be disposed of by way of written submissions and ordered the parties to file their submissions. Both parties filed their submission which I have considered.

ANALYSIS AND DETERMINATION 

Having considered the Application filed by the parties, the response thereto and their written submissions I find that the issue of determination is whether this court acting as the appellate court in the matter has jurisdiction to hear and entertain an Application for amendment of plaints filed at the trial court whose Judgement is subject of the appeal filed by the Appellants. 

The Application before as I have stated the introduction herein above has been filed under Order 8, Rule 3 (1) rule which provides for amendments of pleadings with leave of court in the following terms –

“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.”

The issues of concern in this application are (a) whether after a judgment has been entered, a party can be allowed to amend his or her pleadings and (b) whether an appellate court has power to allow a party to amend pleadings filed in the trial court.

Regarding the first issue it is important to first and foremost state that a judgment is the final decision of a court in a claim unless the same is varied by way of a review or an Appeal. Rule 3 herein above gives parties an opportunity to seek leave of the court to amend pleadings at any stage prior the court delivering its judgment so long as the same meets the requirement set out under Rule 5. However, after a court has rendered its Judgement it becomes fanctus official in so far as the cause(s) action in the suit are concerned unless a party moves it through an application for review under order 45 of the civil procedure rules.  The Appellants herein filed their claims against the Respondent back in the year, 2003. 15 years later in 2018 the trial court rendered its final Judgment dismissing the Appellants claim.  Gacheru J in the case Francis Wakahiu Theuri v Monicah Njeri & 33 others [2017] eKLR had this to say regarding amendments after a judgment has been delivered to change the character of the subject matter:

“…….the applicant is asking the court to amend the Plaint after the Judgment. That would be tantamount to changing the agenda in the claim without giving the defendants an opportunity to ventilate on it. The plaintiff is the one who came to court and gave the Land Reference. He referred to it all through. The court did not make any mistake when it referred to the suit property and the Judgment as Ruiru/Ruiru/Block1 witeithie/125 as that was from the plaintiff’s pleadings and evidence in court. It is trite that amendments to pleadings can be done at any stage of proceedings even after the close of the case but before Judgment. The plaintiff did not take advantage of that position.

Regarding the Second issue, it is clear in this Application the Appellants have preferred an appeal against the final Judgment of the lower court. This a first Appellate court is restricted to re-evaluating and re-viewing pleadings and evidence presented by parties in the lower court with a sole of either affirm, quash, vary or set aside a judgement or even order for a retrial.  In so far as a first appellate court has power to allow for introduction of additional evidence under section 78 of the Civil Procedure Act as read together with order 42 rule 27 of the civil procedure rules, it can only do so under exceptional circumstances. I am equally of the view that such exceptional circumstances do not extend to amendment of pleadings filed by parties before trial court with intentions filling up omissions that led to the collapse of their cases at the trial court. I believe additional evidence must be ones that do not diverse the character of the subject matter through amendment of pleadings.  In Wanjie & others v Sakwa & others (1984) KLR 275 Chesoni JA observed at page 280 as follows:

“This rule is not intended to enable a party who has discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Court of Appeal. The Rule does not authorize the admission of additional evidence for the purpose of removing lacunae and filling in gaps in evidence. The appellate court must find the evidence needful. Additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal. There would be no end to litigation if the rule were used for the purpose of allowing the parties to make out a fresh case or to improve their case by calling further evidence. It follows that the power given by the rule should be exercised very sparingly and great caution should be exercised in admitting fresh evidence.”"

It is quite disturbing that the learned counsel under paragraph 9 of his Affidavit beseeched this Court to re-open the case and hear it de-novo by allowing the Appellants to present further evidence in support of their case upon allowing the amendment in their plaints. This court at the appellate stage might end up assuming the jurisdiction original jurisdiction of the trial court that it does not have. This is a move Justice Chesoni JA as he then was warned this court against in the above case.  As correctly submitted by the learned counsel for the Respondents, the Appellants intend to change the motor vehicle from KAQ 954Q to 954P which is an outright departure from the original claim of the suits filed at the trial court entertained and against which the appeal filed in this court was based. Such drastic change as correctly observed by the learned counsel for the Respondent has the possibility of introducing new owners of the motor vehicle as parties other than the respondents.

This wishes to also court expresses concern that the Appellants filed their suits in 2003, got an adverse Judgement in 2018, preferred an Appeal immediately only to show up in May 2023 exactly five years later seeking to change the character of the subject matter of the suit. This is out rightly an unreasonable delay that is court cannot entertain. What disturbs me most and casts doubts in mind whether in deed the Appellants are interested in pursuing this Application and by extension their Appeal, is the averment by the learned counsel under paragraph 11 that he has been unable to trace the Appellants and that’s why he assumed the role of swearing these Affidavit. This Application is an afterthought and the same has been filed after an inordinate delay.

Based on the above reasons finds that this application lacks merit and the same is dismissed with costs. Mention on 16.5.24 before Justice Magare for compliance with directions on appeal and /or further orders.

Delivered Virtually Via Teams Platform in the presence of: 

Miss Juma for respondent

N/A for applicant

Court Assistant - Owiwa