(Being an Appeal against the Ruling and Orders of Hon. Z. K. Kiboss, Resident Magistrate at the at the Magistrates’ Court at Nairobi, delivered on 20th May 2024 in Milimani Commercial Courts Civil Suit No. E5080 of 2020)
Background
1. This appeal through the memorandum dated 19th June 2024 arises from a ruling of the magistrate’s court delivered on 20th May 2024 in which the court allowed the 1st respondent’s chamber summons application dated 5th March 2024 for leave to amend the plaint. The appellant was aggrieved by that decision and has appealed to this court seeking to set aside the said ruling.
2. The grounds of appeal are expressed in some nine paragraphs but essentially the issues raised therein are that the learned trial magistrate erred in fact and in law in failing to give due consideration to the appellant’s contention that interlocutory judgment having been entered against the 1st defendant in the trial court who is the 2nd respondent herein, amendment to the plaint should not have been allowed without first having the interlocutory judgment set aside and whether on the whole the trial court arrived at the correct decision in allowing the amendment. The appellants therefore pray that the appeal be allowed, the ruling of the trial court set aside and the appellants be granted the costs of the appeal. Further that this court may make any other or further order as it may deem fit.
The case before the Magiatrates Court
3. Key Microfinance Bank Ltd, the plaintiff before the trial court and the 1st respondent herein sued Jackline Nasieku Kumpetai as the 1st defendant to recover an outstanding loan of KShs 878,000/= as at 18th May 2020 together with accrued interest at the contractual rate of 20% p.a. The appellants herein Kithi & Company Advocates and George Kithi the 2nd and 3rd defendants respectively were sued as the guarantors of the loan.
4. It appears that the 1st defendant in the suit never entered appearance nor filed defence and interlocutory judgment was entered against her on 23rd August 2022.
5. On 5th March 2024, a day before the matter came up for hearing, the plaintiff filed the chamber summons application dated 5th March 2024 seeking to amend the plaint. The grounds in support were that since the filing of the suit, the loan balance had continued to attract interest at 20% p.a. and default interest of 1% per month and as at that date it stood at KShs 1,143,200.47 and further that since the 1st defendant defaulted in repayment of the loan, the plaintiff was forced to institute the suit and in so doing incurred legal charges. For that reason, on 1st September 2020 the plaintiff had deducted the sum of KShs 118,274.86 from the 1st defendant’s account to cater for legal fees as agreed in the letter of offer and since the account had no funds, this amount became an overdraft.
6. The plaintiff therefore deposed in its supporting affidavit that it wished to amend the plaint in order to reflect these amounts, being the true position of the matters in issue. Further that the proposed amendments were necessary in order to enable the court to determine the real issues before it and that the amendments would not prejudice the defendants in any way as they would have an opportunity to amend their respective defences.
7. The 1st respondent annexed to its application a copy of the proposed amended defence reflecting the proposed amendments.
8. The appellants vehemently opposed the application through a joint affidavit sworn on 26th March 2024 by George Kithi, the 3rd defendant in the suit and who is the managing partner of the 2nd defendant. The grounds of opposition were that the application had been brought late in the day, the suit being dated 10th September 2020 while the application for leave to amend was being brought up on 5th March 2024, on the eve of the hearing date of the main suit slated for 6th March 2024. The second ground was that after all, there was nothing new being sought to be introduced by the amendment and so the original suit was exhaustive of the issues. The third ground was that interlocutory judgment had already been entered against the 1st defendant and any amendment to the plaint especially one that sought to alter the prayers in the original plaint should not be allowed. The final ground was that the application offended the provisions of Article 50 of the Constitution and the Limitation of Actions Act.
9. The application was heard on oral submissions after which the lower court allowed the amendment and directed that interlocutory judgment entered against the 1st defendant be set aside.
10. That decision is what gives rise to the present appeal.
Submissions
11. The appeal was canvassed by way of written submissions filed by learned counsels for the appellants and the 1st respondent. As would be expected, the 2nd respondent has not participated in the application. The submissions are considered in the analysis that follows.
12. The appellants set out the issues for determination, expressed in four paragraphs, but which in summary is one, that is, whether the plaint can be amended while there exists an interlocutory judgment on record and for that matter whether the trial court’s ruling should be upheld.
13. The 1st respondent on its part has one issue for this court’s determination, that is, whether the appeal has merit.
Analysis
14. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
15. The court’s power to amend pleadings is found in section 100 of the Civil Procedure Act (Cap. 21) Laws of Kenya and expounded in Order 8 of the Civil Procedure Rules 2010 which provide as follows:
S. 100. 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.
16. The relevant provisions of Order 8 are Rules 3 and 5 which provide as follows:
Rule 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.
(2) 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.
(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.
(5) An amendment may be allowed under subrule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.
Rule 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.
(2) This rule shall not have effect in relation to a judgment or order.
17. It is apparent from these provisions of the law that a court has general power to amend pleadings to correct any defect or error in a suit at any stage of the proceedings on terms as to costs or otherwise as it may deem just and all amendments should be made for the purpose of determining the real question or issues raised by or depending on the proceedings.
18. An exposition of this provision can be found in the writings of the learned authors of Bullen & Leake & Jacob’s Precedents of Pleadings, 12th Edition page 127 as follows:
“…the power to grant or refuse leave to amend a pleading is discretionary and is to be exercised so as to do what justice may require in the particular case, as to costs or otherwise. The power may be exercised at any stage of the proceedings and accordingly amendment may be allowed before or at the trial or after trial or even after judgment or an appeal. As a general rule, however, the amendment is sought to be made, it should be allowed if it is made in good faith and if it will not do the opposite party any harm, injury or prejudice him in some way that cannot be compensated by costs or otherwise.”
19. While making reference to the same authors of Bullen & Leake & Jacob's Precedents of Pleading 12th Edition, the Court of Appeal, Shah, JA writing for the Court summarized the law on amendment of pleadings in the case of Joseph ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago [1995] KECA 31 (KLR) 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 exact nature of proposed amendment sought ought to be formulated and be submitted to the other side and the court; that adjournment should be given to the other side if necessary if an amendment is to be allowed; that if the court is not satisfied as to the truth and substantiality of the proposed amendment it ought to be disallowed; that the proposed amendment must not be immaterial or useless or merely technical; that where the plaintiff's claim as originally framed is unsupportable an amendment which would leave the claim equally unsupportable will not be allowed ; 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 but subject however to powers of court to still allow such an amendment notwithstanding the expiry of current period of Limitation: 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.”
20. This court has to determine whether the proposed amendment was in accord with the foregoing principles on amendment of pleadings and whether the decision of the trial court on the issue was correct.
21. The appellants’ main contention before the trial court and this court is that an amendment to the plaint could not be done without the plaintiff first setting aside the interlocutory judgment entered on 23rd August 2022 against the 1st defendant.
22. In effect, the appellant is not contesting that an amendment can be made after interlocutory judgment is entered but that the interlocutory judgment has to be set aside first. According to the appellants, it was upon the plaintiff/1st respondent herein to apply to the court to first set aside the interlocutory judgment and since it had not done so, it was not proper for the trial court to set aside the interlocutory judgment on its own motion in the ruling.
23. On its part, the 1st respondent submits that the amendment was in accord with the law and the trial court was correct in allowing the same especially since the default judgment was set aside. What I note in the submissions, however, is that they only touch on the issue of the amendment seeking to include interest that accrued on the loan since the filing of the suit but not on the issue of adding the legal fees arising from institution of the suit in court.
24. The appellants have cited two cases to support their argument. In the case of Emmanuel Kazungu Chai (Suing as Legal Administrator of the Estate of Kahunda Kono Karisa-Deceased) v William Barua Nyambu & another [2019] KEHC 7139 (KLR), the plaintiff filed an amended plaint long after interlocutory judgment was entered for the plaintiff and without the leave of the court. The High Court found that the amendment was carried out after the pleadings had closed and the leave of the court was required before the amendment could be effected and so the amendment was not in line with Order 8 of the Civil Procedure Rules, 2010 on amendment of pleadings. Of most significance to this court was the Court’s finding therein that interlocutory judgment had been entered on the strength of the original plaint and the learned Judge held that the plaintiff must have had good reason for amending the plaint and it would not have been proper for the learned judge to write a judgment based on the original plaint. In the circumstances, the court struck out the amended plaint but directed the plaintiff to take the necessary steps before the judgment could be written. In effect the court gave the plaintiff an opportunity to seek leave to amend the plaint even at the stage where the parties had closed their cases and were awaiting a judgment. I understand for the purposes of the present case, the most significant issue in that ruling to be the failure to seek leave to amend prior to filing the amended plaint rather than because there was already interlocutory judgment on record.
25. The other case is that of Evergreen Marine (Singapore) PTE Limited & another v Petra Development Services Limited [2023] KECA 1282 (KLR) decided by the Court of Appeal. The excerpt taken from the decision of the Court and relied upon by the appellant herein does not properly bring out the correct position as decided by the Court of Appeal. One has to look at the basis of that decision from the facts of the case.
26. The issue therein was not a straightforward issue of interlocutory judgment being on record. The positon was that respondent (plaintiff in the trial court) successfully applied for and obtained interlocutory judgment. Subsequently, the appellant applied to set aside the interlocutory judgment. That application was declined. The appellant appealed to the Court of Appeal against the decision refusing to set aside the interlocutory judgment. That appeal failed and was dismissed. With the interlocutory judgment intact, the matter proceeded by way of formal proof whereupon the respondent’s witness testified and was extensively cross examined. It was after that and before re-examination that a formal written application for amendment was subsequently made. After hearing the parties, the application was and allowed with the High Court directing that the draft amended plaint be deemed as duly filed subject to payment of court fees and that “the case having proceeded ex parte, the defence pleadings were closed” and that the main suit be fixed for hearing on a priority basis. The Court of Appeal held that:
“Although there was already in force an interlocutory judgment in favour of the respondent, the appellants were nonetheless entitled to participate in the proceedings during the formal proof and to that end should have known the nature of the claim for special damages it had to meet. By permitting the respondent to substantively amend its claim for special damages post cross examination of the respondent’s key witness without granting the appellant’s an opportunity to interrogate the new claim, in our view, occasioned prejudice to the appellants. Given that there was already an interlocutory judgment in place in favour of the respondent and the door for filing a defence by the appellants had been closed, such opportunity would have entailed a recalling of the respondent’s witness for cross examination on the amended claim.”
27. In my understanding of this decision, the Court of Appeal did not fault the High Court judgment allowing the amendment on grounds that it had first not set aside the interlocutory judgment on record but because the High Court had failed to give the appellant an opportunity to interrogate the new claim on special damages, after amendment. The Court of Appeal said that the appellant should at least have been given an opportunity to recall the respondent’s witness for cross-examination on the amended claim. It did not say that interlocutory judgment had to be set aside first before the amendment could be allowed.
28. The facts of that case are therefore distinguishable from this case. In that case, interlocutory judgment had been entered against the very party that was participating in the formal proof proceedings and attempts to set aside the interlocutory judgment had failed up to the appellate level. In the present case the party against whom the interlocutory judgment had been entered had not made any attempt to set it aside. In the present case, hearing of the case for the other appellants herein, had not taken off. So, there was not going to be any other prejudice occasioned to them other than delay in hearing the suit. Such delay would be adequately compensated by an award of costs
29. All the same, the case answers in the affirmative the first issue raised by the appellant in this appeal of whether a plaint can be amended while there exists an interlocutory judgment on record.
30. The 1st respondent submits and I agree with it that for the reasons I have stated above the above two decisions are distinguishable from the present case.
31. Further, on the issue of interlocutory judgment being on record against the 1st defendant, Order 10 Rule 11 CPR provides that where judgment has been entered under the Order, the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just. Under this Rule the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among others. (see the case of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR)). The interlocutory judgment may be set aside either upon the court being moved by a party or on its own motion provided it is in the interest of justice to do so and upon considering all the other relevant factors.
32. In this case, whereas the magistrate’s court did not have to set aside the interlocutory judgment against the 1st defendant before granting the amendment, all the same it did set it aside at the same time that it granted the application to amend. I do not find any fault in the learned magistrate’s decision.
33. The power of the court to amend a pleading as well as the power to set aside interlocutory judgment are both discretionary. In the case cited by learned counsel for the 1st respondent of Printing Industries Limited & another v Bank of Baroda [2017] KECA 721 (KLR) the Court of Appeal stressed that subject to the requirement that discretionary power should be exercised judiciously the Court would be slow to interfere with the exercise of discretion by a judge of the High Court. The same applies to this court while considering the exercise of a discretionary power by the magistrate’s court.
34. I would therefore find that on the basis that the trial court had failed to first set aside the interlocutory judgment against the 1st defendant before granting the amendment, this appeal would have no merit.
35. However, this court as a court of first appeal has to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance. In doing so, I note that one of the grounds raised by the appellant in its objection to the amendment was that the amendment sought by the plaintiff before the magistrate’s court was not going to in any way alter the position taken in the original plaint since not any new or additional facts or issues were being introduced by the amendments.
36. On that issue, the 1st respondent averred in its application and learned counsel has submitted thereon that the amendment was to include the interest that had accrued on the loan since the filing of the suit. There was a further reason which learned counsel has not submitted on which was that the plaintiff had deducted a sum of KShs 118,274.86 from the 1st defendant’s account to cater for legal fees as agreed in the letter of offer and since the account had no funds, this amount became an overdraft.
37. In the original plaint, the plaintiff’s prayer was for judgment against the defendants was for inter alia the outstanding loan balance of KShs 878,800/= as at 18th May 2020 together with the accrued interest at the contractual rate of 20% p.a. It sought to amend this prayer to be the outstanding loan balance of KShs 1,143,200.47/= as at 5th March 2024 together with the accrued interest at the contractual rate of 20% p.a.
38. As for the legal fees KShs 118,274.86 the appellant averred in the draft amended plaint that it incurred the same after it was forced to file the suit and it had to overdraw the 1st respondent’s account with that sum as it did not have funds.
39. In response, the 2nd and 3rd defendants deposed in the replying affidavit that the amendments sought had already been raised in the original plaint against the 1st defendant in the original plaint. That they were therefore irrelevant and added no value to the suit.
40. Looking at the proposed amendments, I think I would agree with the appellants that the same were unnecessary. On the amendment to include the contractual interest accrued after the suit was filed, the plaintiff had already asked for the same in its original prayers. It was now an issue to be decided by the court whether it would grant what interest. On the amendment to include pre-action costs, the same would fall under what section 27 of the CPA terms as “the costs of and incidental to all suits,” which are in the discretion of the court or judge. It was therefore not open to the appellant to include such costs as part of its claim. I would find the proposed amendments to fall under what the learned authors of Bullen & Leake & Jacob’s Precedents of Pleading cited by the Court of Appeal in the Joseph ochieng & 2 others Trading as Aquiline Agencies case above when they said that, “... the proposed amendment must not be immaterial or useless or merely technical;...”
41. In the present case, I find that the proposed amendments were not material or useful to the claim at all. They were not merited and the application for amendment ought to have been dismissed.
Determination
42. On that ground I am satisfied that this appeal has merit and the same succeeds. I allow the appeal and set aside the ruling and orders of the Magistrate’s Court given on 20th May 2024 and substitute therefor an order dismissing, with costs, the 1st respondent’s application dated 5th March 2024.
43. The appellants will have the costs of this appeal.
44. Mention on 13th May 2026 before the duty court or Head of station at the Milimani Magistrates Commercial Courts for directions on the hearing of the suit.
Delivered, dated and signed on the Virtual Platform, Teams this 11th day of February 2026.
ANDAYI W. FRANCIS
JUDGE
In the presence of:
Jillo (Ms) h/b for Kithi for the Appellant.
N/A for the Respondent.
Ummu: Court Assistant.
Background
1. This appeal through the memorandum dated 19th June 2024 arises from a ruling of the magistrate’s court delivered on 20th May 2024 in which the court allowed the 1st respondent’s chamber summons application dated 5th March 2024 for leave to amend the plaint. The appellant was aggrieved by that decision and has appealed to this court seeking to set aside the said ruling.
2. The grounds of appeal are expressed in some nine paragraphs but essentially the issues raised therein are that the learned trial magistrate erred in fact and in law in failing to give due consideration to the appellant’s contention that interlocutory judgment having been entered against the 1st defendant in the trial court who is the 2nd respondent herein, amendment to the plaint should not have been allowed without first having the interlocutory judgment set aside and whether on the whole the trial court arrived at the correct decision in allowing the amendment. The appellants therefore pray that the appeal be allowed, the ruling of the trial court set aside and the appellants be granted the costs of the appeal. Further that this court may make any other or further order as it may deem fit.
The case before the Magiatrates Court
3. Key Microfinance Bank Ltd, the plaintiff before the trial court and the 1st respondent herein sued Jackline Nasieku Kumpetai as the 1st defendant to recover an outstanding loan of KShs 878,000/= as at 18th May 2020 together with accrued interest at the contractual rate of 20% p.a. The appellants herein Kithi & Company Advocates and George Kithi the 2nd and 3rd defendants respectively were sued as the guarantors of the loan.
4. It appears that the 1st defendant in the suit never entered appearance nor filed defence and interlocutory judgment was entered against her on 23rd August 2022.
5. On 5th March 2024, a day before the matter came up for hearing, the plaintiff filed the chamber summons application dated 5th March 2024 seeking to amend the plaint. The grounds in support were that since the filing of the suit, the loan balance had continued to attract interest at 20% p.a. and default interest of 1% per month and as at that date it stood at KShs 1,143,200.47 and further that since the 1st defendant defaulted in repayment of the loan, the plaintiff was forced to institute the suit and in so doing incurred legal charges. For that reason, on 1st September 2020 the plaintiff had deducted the sum of KShs 118,274.86 from the 1st defendant’s account to cater for legal fees as agreed in the letter of offer and since the account had no funds, this amount became an overdraft.
6. The plaintiff therefore deposed in its supporting affidavit that it wished to amend the plaint in order to reflect these amounts, being the true position of the matters in issue. Further that the proposed amendments were necessary in order to enable the court to determine the real issues before it and that the amendments would not prejudice the defendants in any way as they would have an opportunity to amend their respective defences.
7. The 1st respondent annexed to its application a copy of the proposed amended defence reflecting the proposed amendments.
8. The appellants vehemently opposed the application through a joint affidavit sworn on 26th March 2024 by George Kithi, the 3rd defendant in the suit and who is the managing partner of the 2nd defendant. The grounds of opposition were that the application had been brought late in the day, the suit being dated 10th September 2020 while the application for leave to amend was being brought up on 5th March 2024, on the eve of the hearing date of the main suit slated for 6th March 2024. The second ground was that after all, there was nothing new being sought to be introduced by the amendment and so the original suit was exhaustive of the issues. The third ground was that interlocutory judgment had already been entered against the 1st defendant and any amendment to the plaint especially one that sought to alter the prayers in the original plaint should not be allowed. The final ground was that the application offended the provisions of Article 50 of the Constitution and the Limitation of Actions Act.
9. The application was heard on oral submissions after which the lower court allowed the amendment and directed that interlocutory judgment entered against the 1st defendant be set aside.
10. That decision is what gives rise to the present appeal.
Submissions
11. The appeal was canvassed by way of written submissions filed by learned counsels for the appellants and the 1st respondent. As would be expected, the 2nd respondent has not participated in the application. The submissions are considered in the analysis that follows.
12. The appellants set out the issues for determination, expressed in four paragraphs, but which in summary is one, that is, whether the plaint can be amended while there exists an interlocutory judgment on record and for that matter whether the trial court’s ruling should be upheld.
13. The 1st respondent on its part has one issue for this court’s determination, that is, whether the appeal has merit.
Analysis
14. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as was held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
15. The court’s power to amend pleadings is found in section 100 of the Civil Procedure Act (Cap. 21) Laws of Kenya and expounded in Order 8 of the Civil Procedure Rules 2010 which provide as follows:
S. 100. 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.
16. The relevant provisions of Order 8 are Rules 3 and 5 which provide as follows:
Rule 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.
(2) 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.
(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.
(5) An amendment may be allowed under subrule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.
Rule 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.
(2) This rule shall not have effect in relation to a judgment or order.
17. It is apparent from these provisions of the law that a court has general power to amend pleadings to correct any defect or error in a suit at any stage of the proceedings on terms as to costs or otherwise as it may deem just and all amendments should be made for the purpose of determining the real question or issues raised by or depending on the proceedings.
18. An exposition of this provision can be found in the writings of the learned authors of Bullen & Leake & Jacob’s Precedents of Pleadings, 12th Edition page 127 as follows:
“…the power to grant or refuse leave to amend a pleading is discretionary and is to be exercised so as to do what justice may require in the particular case, as to costs or otherwise. The power may be exercised at any stage of the proceedings and accordingly amendment may be allowed before or at the trial or after trial or even after judgment or an appeal. As a general rule, however, the amendment is sought to be made, it should be allowed if it is made in good faith and if it will not do the opposite party any harm, injury or prejudice him in some way that cannot be compensated by costs or otherwise.”
19. While making reference to the same authors of Bullen & Leake & Jacob's Precedents of Pleading 12th Edition, the Court of Appeal, Shah, JA writing for the Court summarized the law on amendment of pleadings in the case of Joseph ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago [1995] KECA 31 (KLR) 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 exact nature of proposed amendment sought ought to be formulated and be submitted to the other side and the court; that adjournment should be given to the other side if necessary if an amendment is to be allowed; that if the court is not satisfied as to the truth and substantiality of the proposed amendment it ought to be disallowed; that the proposed amendment must not be immaterial or useless or merely technical; that where the plaintiff's claim as originally framed is unsupportable an amendment which would leave the claim equally unsupportable will not be allowed ; 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 but subject however to powers of court to still allow such an amendment notwithstanding the expiry of current period of Limitation: 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.”
20. This court has to determine whether the proposed amendment was in accord with the foregoing principles on amendment of pleadings and whether the decision of the trial court on the issue was correct.
21. The appellants’ main contention before the trial court and this court is that an amendment to the plaint could not be done without the plaintiff first setting aside the interlocutory judgment entered on 23rd August 2022 against the 1st defendant.
22. In effect, the appellant is not contesting that an amendment can be made after interlocutory judgment is entered but that the interlocutory judgment has to be set aside first. According to the appellants, it was upon the plaintiff/1st respondent herein to apply to the court to first set aside the interlocutory judgment and since it had not done so, it was not proper for the trial court to set aside the interlocutory judgment on its own motion in the ruling.
23. On its part, the 1st respondent submits that the amendment was in accord with the law and the trial court was correct in allowing the same especially since the default judgment was set aside. What I note in the submissions, however, is that they only touch on the issue of the amendment seeking to include interest that accrued on the loan since the filing of the suit but not on the issue of adding the legal fees arising from institution of the suit in court.
24. The appellants have cited two cases to support their argument. In the case of Emmanuel Kazungu Chai (Suing as Legal Administrator of the Estate of Kahunda Kono Karisa-Deceased) v William Barua Nyambu & another [2019] KEHC 7139 (KLR), the plaintiff filed an amended plaint long after interlocutory judgment was entered for the plaintiff and without the leave of the court. The High Court found that the amendment was carried out after the pleadings had closed and the leave of the court was required before the amendment could be effected and so the amendment was not in line with Order 8 of the Civil Procedure Rules, 2010 on amendment of pleadings. Of most significance to this court was the Court’s finding therein that interlocutory judgment had been entered on the strength of the original plaint and the learned Judge held that the plaintiff must have had good reason for amending the plaint and it would not have been proper for the learned judge to write a judgment based on the original plaint. In the circumstances, the court struck out the amended plaint but directed the plaintiff to take the necessary steps before the judgment could be written. In effect the court gave the plaintiff an opportunity to seek leave to amend the plaint even at the stage where the parties had closed their cases and were awaiting a judgment. I understand for the purposes of the present case, the most significant issue in that ruling to be the failure to seek leave to amend prior to filing the amended plaint rather than because there was already interlocutory judgment on record.
25. The other case is that of Evergreen Marine (Singapore) PTE Limited & another v Petra Development Services Limited [2023] KECA 1282 (KLR) decided by the Court of Appeal. The excerpt taken from the decision of the Court and relied upon by the appellant herein does not properly bring out the correct position as decided by the Court of Appeal. One has to look at the basis of that decision from the facts of the case.
26. The issue therein was not a straightforward issue of interlocutory judgment being on record. The positon was that respondent (plaintiff in the trial court) successfully applied for and obtained interlocutory judgment. Subsequently, the appellant applied to set aside the interlocutory judgment. That application was declined. The appellant appealed to the Court of Appeal against the decision refusing to set aside the interlocutory judgment. That appeal failed and was dismissed. With the interlocutory judgment intact, the matter proceeded by way of formal proof whereupon the respondent’s witness testified and was extensively cross examined. It was after that and before re-examination that a formal written application for amendment was subsequently made. After hearing the parties, the application was and allowed with the High Court directing that the draft amended plaint be deemed as duly filed subject to payment of court fees and that “the case having proceeded ex parte, the defence pleadings were closed” and that the main suit be fixed for hearing on a priority basis. The Court of Appeal held that:
“Although there was already in force an interlocutory judgment in favour of the respondent, the appellants were nonetheless entitled to participate in the proceedings during the formal proof and to that end should have known the nature of the claim for special damages it had to meet. By permitting the respondent to substantively amend its claim for special damages post cross examination of the respondent’s key witness without granting the appellant’s an opportunity to interrogate the new claim, in our view, occasioned prejudice to the appellants. Given that there was already an interlocutory judgment in place in favour of the respondent and the door for filing a defence by the appellants had been closed, such opportunity would have entailed a recalling of the respondent’s witness for cross examination on the amended claim.”
27. In my understanding of this decision, the Court of Appeal did not fault the High Court judgment allowing the amendment on grounds that it had first not set aside the interlocutory judgment on record but because the High Court had failed to give the appellant an opportunity to interrogate the new claim on special damages, after amendment. The Court of Appeal said that the appellant should at least have been given an opportunity to recall the respondent’s witness for cross-examination on the amended claim. It did not say that interlocutory judgment had to be set aside first before the amendment could be allowed.
28. The facts of that case are therefore distinguishable from this case. In that case, interlocutory judgment had been entered against the very party that was participating in the formal proof proceedings and attempts to set aside the interlocutory judgment had failed up to the appellate level. In the present case the party against whom the interlocutory judgment had been entered had not made any attempt to set it aside. In the present case, hearing of the case for the other appellants herein, had not taken off. So, there was not going to be any other prejudice occasioned to them other than delay in hearing the suit. Such delay would be adequately compensated by an award of costs
29. All the same, the case answers in the affirmative the first issue raised by the appellant in this appeal of whether a plaint can be amended while there exists an interlocutory judgment on record.
30. The 1st respondent submits and I agree with it that for the reasons I have stated above the above two decisions are distinguishable from the present case.
31. Further, on the issue of interlocutory judgment being on record against the 1st defendant, Order 10 Rule 11 CPR provides that where judgment has been entered under the Order, the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just. Under this Rule the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among others. (see the case of James Kanyiita Nderitu & another v Marios Philotas Ghikas & another [2016] KECA 470 (KLR)). The interlocutory judgment may be set aside either upon the court being moved by a party or on its own motion provided it is in the interest of justice to do so and upon considering all the other relevant factors.
32. In this case, whereas the magistrate’s court did not have to set aside the interlocutory judgment against the 1st defendant before granting the amendment, all the same it did set it aside at the same time that it granted the application to amend. I do not find any fault in the learned magistrate’s decision.
33. The power of the court to amend a pleading as well as the power to set aside interlocutory judgment are both discretionary. In the case cited by learned counsel for the 1st respondent of Printing Industries Limited & another v Bank of Baroda [2017] KECA 721 (KLR) the Court of Appeal stressed that subject to the requirement that discretionary power should be exercised judiciously the Court would be slow to interfere with the exercise of discretion by a judge of the High Court. The same applies to this court while considering the exercise of a discretionary power by the magistrate’s court.
34. I would therefore find that on the basis that the trial court had failed to first set aside the interlocutory judgment against the 1st defendant before granting the amendment, this appeal would have no merit.
35. However, this court as a court of first appeal has to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance. In doing so, I note that one of the grounds raised by the appellant in its objection to the amendment was that the amendment sought by the plaintiff before the magistrate’s court was not going to in any way alter the position taken in the original plaint since not any new or additional facts or issues were being introduced by the amendments.
36. On that issue, the 1st respondent averred in its application and learned counsel has submitted thereon that the amendment was to include the interest that had accrued on the loan since the filing of the suit. There was a further reason which learned counsel has not submitted on which was that the plaintiff had deducted a sum of KShs 118,274.86 from the 1st defendant’s account to cater for legal fees as agreed in the letter of offer and since the account had no funds, this amount became an overdraft.
37. In the original plaint, the plaintiff’s prayer was for judgment against the defendants was for inter alia the outstanding loan balance of KShs 878,800/= as at 18th May 2020 together with the accrued interest at the contractual rate of 20% p.a. It sought to amend this prayer to be the outstanding loan balance of KShs 1,143,200.47/= as at 5th March 2024 together with the accrued interest at the contractual rate of 20% p.a.
38. As for the legal fees KShs 118,274.86 the appellant averred in the draft amended plaint that it incurred the same after it was forced to file the suit and it had to overdraw the 1st respondent’s account with that sum as it did not have funds.
39. In response, the 2nd and 3rd defendants deposed in the replying affidavit that the amendments sought had already been raised in the original plaint against the 1st defendant in the original plaint. That they were therefore irrelevant and added no value to the suit.
40. Looking at the proposed amendments, I think I would agree with the appellants that the same were unnecessary. On the amendment to include the contractual interest accrued after the suit was filed, the plaintiff had already asked for the same in its original prayers. It was now an issue to be decided by the court whether it would grant what interest. On the amendment to include pre-action costs, the same would fall under what section 27 of the CPA terms as “the costs of and incidental to all suits,” which are in the discretion of the court or judge. It was therefore not open to the appellant to include such costs as part of its claim. I would find the proposed amendments to fall under what the learned authors of Bullen & Leake & Jacob’s Precedents of Pleading cited by the Court of Appeal in the Joseph ochieng & 2 others Trading as Aquiline Agencies case above when they said that, “... the proposed amendment must not be immaterial or useless or merely technical;...”
41. In the present case, I find that the proposed amendments were not material or useful to the claim at all. They were not merited and the application for amendment ought to have been dismissed.
Determination
42. On that ground I am satisfied that this appeal has merit and the same succeeds. I allow the appeal and set aside the ruling and orders of the Magistrate’s Court given on 20th May 2024 and substitute therefor an order dismissing, with costs, the 1st respondent’s application dated 5th March 2024.
43. The appellants will have the costs of this appeal.
44. Mention on 13th May 2026 before the duty court or Head of station at the Milimani Magistrates Commercial Courts for directions on the hearing of the suit.
Delivered, dated and signed on the Virtual Platform, Teams this 11th day of February 2026.
ANDAYI W. FRANCIS
JUDGE
In the presence of:
Jillo (Ms) h/b for Kithi for the Appellant.
N/A for the Respondent.
Ummu: Court Assistant.