INTRODUCTION AND BACKGROUND
1. The Applicant has moved this Court by way of a Notice of Motion dated 29 th September 2025 brought pursuant to Order 8 Rules 3(1), (2), (5) and Rule 5, Order 10 Rule 2, Order 51 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and all other enabling provisions of the law. The Application seeks the following orders: -
I. Spent.
II. That the names of the 3 rd , 4 th and 5 th Defendants be struck out from this suit.
III. That leave be granted to the Plaintiff to file an Amended Plaint in terms of the annexed draft.
IV. That the annexed Amended Plaint be deemed as properly filed.
V. That the costs of the Application be provided for.
2. The application is supported by the Affidavit of Michael Muriithi Munoru, the Plaintiff/Applicant herein, sworn on 29 th September 2025. The Applicant deposes that the present suit arises from an aborted sale transaction involving L.R. No. 2951/37, in which the 1 st Defendant had offered him a credit facility of Kshs. 360,000,000/= towards the purchase price, but subsequently cancelled the facility, causing the transaction to collapse. He avers that the suit was instituted principally to recover monies paid to the 1 st Defendant in relation to the aborted transaction, to seek suspension of interest on the sums disbursed before perfection of the security, and to restrain the sale of the suit property.
3. The Applicant, however, states that he no longer claims any purchaser's or proprietary interest in L.R. No. 2951/37 and has abandoned the prayer for an injunction. He contends that the proposed amendments are necessary to unequivocally clarify that his claim is limited to the refund of monies paid to the 1 st Defendant in respect of the abortive transaction.
4. The Applicant further deposes that the 3 rd , 4 th and 5 th Defendants were merely nominal parties, have never participated in the proceedings, and ought to be struck out. He maintains that the amendments will facilitate the determination of the real issues in controversy, occasion no prejudice to the Defendants, and should be determined before the hearing of the 1 st Defendant's application for stay of proceedings, which is founded on the erroneous premise that the Plaintiff claims a proprietary interest in the suit property and seeks to restrain its sale.
5. The 1 st Defendant /Respondent opposes the application on the ground that the proposed amendments fundamentally alter the Plaintiff's/Applicant’s case by substituting the original cause of action with an entirely different one founded on the alleged breach of a facility letter. It contends that such an amendment is impermissible under the principles in Eastern Bakery v Castellino as it changes the subject matter of the suit.
6. The Respondent further argues that the proposed claim is statute-barred because it relates to banking transactions undertaken in 2017 and 2019, well outside the six-year limitation period. Allowing the amendment would therefore deprive the Respondent of its accrued defence of limitation and occasion substantial prejudice.
APPLICANT'S SUBMISSIONS
7. The Applicant submits that the Court has wide and unfettered discretion to allow amendments to pleadings at any stage of the proceedings provided they are necessary for determining the real questions in controversy and do not occasion prejudice incapable of compensation. Reliance is placed on Institute for Social Accountability & Another v Parliament of Kenya & 3 Others [2014] eKLR , Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000] eKLR, Ochieng & Others v First National Bank of Chicago [1995-1998] 2 EA 183 , and Eastern Bakery v Castelino [1958] EA 461 , for the proposition that amendments should be freely allowed where they facilitate the just determination of the dispute.
8. The Applicant contends that the proposed amendments merely clarify that the Plaintiff does not assert any purchaser's or proprietary interest over LR No. 2951/37, does not seek injunctive relief against the exercise of the statutory power of sale, and seeks to remove unnecessary parties from the suit.
9. It argues that no new cause of action is introduced, the suit has not proceeded to pre-trial, and the 1 st Defendant will suffer no prejudice as it remains at liberty to amend its defence if necessary.
10. The Applicant therefore urges the Court to allow the amendment in furtherance of substantive justice.
1 ST DEFENDANT'S/RESPONDENT’S SUBMISSIONS
11. The 1 st Defendant/Respondent submits that the application is devoid of merit because the proposed amendments fundamentally alter the character of the suit by abandoning the original claim founded on an alleged purchaser's interest and substituting it with an entirely new contractual claim based on the alleged breach of a facility letter.
12. It argues that such an amendment introduces a distinct cause of action arising from transactions undertaken in 2017 and 2019, which is now statute-barred under the Limitation of Actions Act.
13. The 1st Defendant/Respondent relies on Eastern Bakery v Castelino [1958] EA 461 , Dhanesvar Mehta v Manilal M. Shah [1965] EA 321 , Weldon v Neal (1887) 19 QBD 394 , and Attorney General v Kenya Commercial Bank Ltd [2019] eKLR to submit that although courts have discretion to permit amendments, such discretion cannot be exercised to introduce a new and inconsistent cause of action after the limitation period has expired or to deprive a party of an accrued limitation defence. It maintains that allowing the amendment would occasion substantial prejudice by extinguishing its statutory defence and therefore prays that the application be dismissed with costs.
ISSUES FOR DETERMINATION
1. Whether the Applicant has satisfied the legal threshold for grant of leave to amend the Plaint.
2. Whether the proposed amendments are barred by the Limitation of Actions Act.
3. Whether the 3rd, 4th and 5th Defendants ought to be struck out from the suit.
ANALYSIS AND DETERMINATION
1. Whether the Applicant has satisfied the legal threshold for grant of leave to amend the Plaint
14. The power of the Court to permit amendment of pleadings is donated by Order 8 Rules 3 and 5 of the Civil Procedure Rules. Order 8, Rule 3 provides for amendment of pleading with leave and reads inter alia: -
“(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.”
15. Order 8 Rule 5 provides: -
“(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.”
16. The underlying objective of the provisions is to ensure that the real questions in controversy between the parties are effectively and completely determined. The discretion, though wide, must be exercised judiciously and upon consideration of whether the amendment is necessary for the just determination of the dispute, whether it introduces a new or inconsistent cause of action, and whether it occasions prejudice incapable of compensation by an award of costs.
17. The principles governing amendment of pleadings are now well settled. In Eastern Bakery v Castelino [1958] EA 461 , the former East African Court of Appeal stated:
"It will be sufficient, for purposes of the present case, to say that amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side, and that there is no injustice if the other side can be compensated by costs."
The Court, however, was careful to add:
"The court will not refuse to allow an amendment simply because it introduces a new case... But there is no power to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit... The court will refuse leave to amend where the amendment would prejudice the rights of the opposite party existing at the date of the proposed amendment."
18. Similarly, in Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000] KECA 367 (KLR) , the Court of Appeal, borrowing from the learned authors Chitaley and Rao in Volume 2 of the 6th Edition of the AIR Commentaries on the Indian Civil Procedure Code (p. 2245), restated the settled principles governing amendment of pleadings as follows:
"A party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits provided there has been no undue delay, no new or inconsistent cause of action is introduced, no vested interest or accrued legal right is affected and the amendment can be allowed without injustice to the other side."
19. Having compared the original Plaint with the proposed Amended Plaint, it is apparent that the gravamen of the Plaintiff's claim remains anchored on the same factual substratum, namely the aborted sale transaction relating to L.R. No. 2951/37, the facility letter issued by the 1st Defendant, the subsequent cancellation of the facility, and the financial consequences flowing therefrom.
20. The proposed amendments principally delete the Plaintiff's assertion of a purchaser's proprietary interest in the suit property, abandon the prayer seeking to restrain the 1 st Defendant from exercising its statutory power of sale, and clarify that the Plaintiff's claim is confined to the recovery of monies allegedly paid pursuant to the cancelled facility together with declaratory relief relating to the interest charged.
21. Significantly, the proposed amendments also reduce the quantum of the Plaintiff's claim. Whereas the original Plaint sought the sum of Kshs. 143,138,022/=, the proposed Amended Plaint now claims Kshs. 102,026,354.32/=, representing a reduction of Kshs. 41,111,667.68/=. This reduction is not without significance. Rather than enlarging the Plaintiff's claim or exposing the 1 st Defendant to additional liability, the amendments narrow the monetary relief sought and confine the claim to specific sums allegedly debited pursuant to the impugned facility.
22. In the Court's view, this lends credence to the Applicant's contention that the amendments are intended to streamline the dispute by abandoning certain reliefs and refining the remedies sought, as opposed to introducing a substantially different claim. In Sadera & 2 others v Kerema & 7 others (Civil Appeal 89 of 2019) [2025] KECA 458 (KLR) , it was held that:-
"So long as the cause of action sought to be introduced arises out of the same facts or substantially the same facts as those already pleaded in the plaint sought to be amended, an application for amendment will be allowed."
23. The 1 st Defendant/Respondent has argued that the amendments fundamentally transform the suit into a contractual claim founded upon breach of the facility letter. While that argument is not without force, a reading of both pleadings demonstrates that the facility letter and the aborted transaction were pleaded from the inception as part of the factual matrix giving rise to the dispute. The amendments merely crystallize the reliefs flowing from those pleaded facts after the Plaintiff/Applicant abandoned his proprietary claim over the suit property.
24. In any event, this matter has not proceeded to full hearing. No evidence has been tendered and the 1st Defendant will have the opportunity, if leave is granted, to amend its Defence and raise any additional factual or legal issues that may arise from the amended pleadings. Any inconvenience occasioned thereby is capable of being compensated through costs.
25. The Court is therefore satisfied that the proposed amendments are intended to facilitate the determination of the real controversy between the parties and do not occasion prejudice incapable of compensation.
26. Accordingly, the Court finds that the Applicant has satisfied the threshold for grant of leave to amend the Plaint.
2. Whether the proposed amendments are barred by the Limitation of Actions Act
27. The 1 st Defendant/Respondent contends that the proposed amendments introduce a fresh contractual cause of action arising from transactions undertaken in 2017 and 2019 and are therefore barred by statute.
28. Section 4(1)(a) of the Limitation of Actions Act provides that: -
“The following actions may not be brought after the end of six years from the date on which the cause of action accrued-
a.actions founded on contract;”
29. Order 8 Rule 3(2) of the Civil Procedure Rules provides as follows: -
“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.”
30. The approach is illustrated in Sammy Ng’ang’a Ndungu v Kenya Commercial Bank (2021) eKLR where the Court held that:-
“On whether the proposed amendment will deprive the defendant of the defence of limitation, having found that there is no new cause of action that will be introduced by the proposed amendment, this argument clearly lacks traction.”
31. Similarly, the court in Razak & another v Dhadhlalla (2018) eKLR expressly found that the amended claim was not statute-barred because it flowed directly from the cause of action already pleaded. The learned Judge held that: -
“In my view, the claim for past and future expenses flows directly from the alleged negligence of the Respondent. Negligence was pleaded in the plaint dated 13 th July 2015 together with a claim for special damages. I therefore find that the proposed claim is not time barred.”
32. In the circumstances, and having regard to the provisions of section 4(1)(a) of the Limitation of Actions Act and Order 8 Rule 3(2) of the Civil Procedure Rules, I find that the proposed amendments do not offend the applicable limitation period as they do not introduce a new cause of action. The limitation objection is therefore not a bar to the grant of leave to amend.
3. Whether the 3 rd , 4 th and 5 th Defendants ought to be struck out from the suit
33. The Applicant further seeks the removal of the 3 rd , 4 th and 5 th Defendants on the basis that they were joined solely because of the Plaintiff's earlier claim to a purchaser's interest in L.R. No. 2951/37, a claim that has since been abandoned.
34. The Court's jurisdiction to strike out parties is found under Order 1 Rule 10(2) of the Civil Procedure Rules, which provides that: -
“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.”
35. Order 1 Rule 14 of the Civil Procedure Rules further provides for the time and manner in which the application envisaged under Order 10 (2) of the Civil Procedure Rules is to be brought. It states
“Any application to add or strike out or substitute a plaintiff or defendant may be made to the court at any time before trial by chamber summons or at the trial of the suit in a summary manner .”
36. This position has been enunciated by the courts in several cases including Diamond Trust Bank Kenya Ltd v Richard Mwangi Kamotho & 2 others [2017] KEHC 4674 (KLR ) where the Court stated:-
The rationale behind the provisions is not difficult to find; a party improperly enjoined in a suit does not have to endure the rigour of a full trial and thereby incur expenses before it can vindicate itself. Rule 10 (2) of the Civil Procedure Rules allows parties to move the court to strike out the name of a Plaintiff or Defendant improperly joined or to have a necessary party added “in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit”. That is only possible when the correct parties are before the court.
37. The proposed Amended Plaint no longer seeks any relief against the 3 rd , 4 th and 5 th Defendants. The injunctive relief directed at preserving the suit property has been abandoned and the dispute, as presently framed, is confined to the financial dealings between the Plaintiff and the 1 st Defendant arising from the cancelled facility and the aborted sale transaction.
38. There is nothing before the Court to demonstrate that the continued participation of the 3 rd , 4 th and 5 th Defendants is necessary for the complete adjudication of the remaining issues. Equally, no prejudice has been demonstrated that would be suffered by any party if those Defendants are removed from the proceedings.
39. In the premises, the Court is satisfied that the continued joinder of the 3 rd , 4 th and 5 th Defendants serves no useful purpose and that they ought to be struck out from the suit.
DISPOSITION AND ORDERS
40. For the foregoing reasons, I find the Notice of Motion application to be merited and accordingly make the following orders:
i. The names of the 3 rd , 4 th and 5 th Defendants are hereby struck out from the suit.
ii. Leave is hereby granted to the Plaintiff to file an Amended Plaint in terms of the annexed draft.
iii. The annexed Amended Plaint is hereby deemed as duly filed, upon payment of the requisite court fees.
iv. Each party shall bear its own costs of the Application.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17 th DAY OF SEPTEMBER 2026.
MURUNGA, J
Delivered on virtual platform in the presence of:
Olaha for the Applicant
Mosobera h/b for Kiragu Kimani for the 3 rd Respondent
Kevin Babu - Court Assistant
1. The Applicant has moved this Court by way of a Notice of Motion dated 29 th September 2025 brought pursuant to Order 8 Rules 3(1), (2), (5) and Rule 5, Order 10 Rule 2, Order 51 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and all other enabling provisions of the law. The Application seeks the following orders: -
I. Spent.
II. That the names of the 3 rd , 4 th and 5 th Defendants be struck out from this suit.
III. That leave be granted to the Plaintiff to file an Amended Plaint in terms of the annexed draft.
IV. That the annexed Amended Plaint be deemed as properly filed.
V. That the costs of the Application be provided for.
2. The application is supported by the Affidavit of Michael Muriithi Munoru, the Plaintiff/Applicant herein, sworn on 29 th September 2025. The Applicant deposes that the present suit arises from an aborted sale transaction involving L.R. No. 2951/37, in which the 1 st Defendant had offered him a credit facility of Kshs. 360,000,000/= towards the purchase price, but subsequently cancelled the facility, causing the transaction to collapse. He avers that the suit was instituted principally to recover monies paid to the 1 st Defendant in relation to the aborted transaction, to seek suspension of interest on the sums disbursed before perfection of the security, and to restrain the sale of the suit property.
3. The Applicant, however, states that he no longer claims any purchaser's or proprietary interest in L.R. No. 2951/37 and has abandoned the prayer for an injunction. He contends that the proposed amendments are necessary to unequivocally clarify that his claim is limited to the refund of monies paid to the 1 st Defendant in respect of the abortive transaction.
4. The Applicant further deposes that the 3 rd , 4 th and 5 th Defendants were merely nominal parties, have never participated in the proceedings, and ought to be struck out. He maintains that the amendments will facilitate the determination of the real issues in controversy, occasion no prejudice to the Defendants, and should be determined before the hearing of the 1 st Defendant's application for stay of proceedings, which is founded on the erroneous premise that the Plaintiff claims a proprietary interest in the suit property and seeks to restrain its sale.
5. The 1 st Defendant /Respondent opposes the application on the ground that the proposed amendments fundamentally alter the Plaintiff's/Applicant’s case by substituting the original cause of action with an entirely different one founded on the alleged breach of a facility letter. It contends that such an amendment is impermissible under the principles in Eastern Bakery v Castellino as it changes the subject matter of the suit.
6. The Respondent further argues that the proposed claim is statute-barred because it relates to banking transactions undertaken in 2017 and 2019, well outside the six-year limitation period. Allowing the amendment would therefore deprive the Respondent of its accrued defence of limitation and occasion substantial prejudice.
APPLICANT'S SUBMISSIONS
7. The Applicant submits that the Court has wide and unfettered discretion to allow amendments to pleadings at any stage of the proceedings provided they are necessary for determining the real questions in controversy and do not occasion prejudice incapable of compensation. Reliance is placed on Institute for Social Accountability & Another v Parliament of Kenya & 3 Others [2014] eKLR , Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000] eKLR, Ochieng & Others v First National Bank of Chicago [1995-1998] 2 EA 183 , and Eastern Bakery v Castelino [1958] EA 461 , for the proposition that amendments should be freely allowed where they facilitate the just determination of the dispute.
8. The Applicant contends that the proposed amendments merely clarify that the Plaintiff does not assert any purchaser's or proprietary interest over LR No. 2951/37, does not seek injunctive relief against the exercise of the statutory power of sale, and seeks to remove unnecessary parties from the suit.
9. It argues that no new cause of action is introduced, the suit has not proceeded to pre-trial, and the 1 st Defendant will suffer no prejudice as it remains at liberty to amend its defence if necessary.
10. The Applicant therefore urges the Court to allow the amendment in furtherance of substantive justice.
1 ST DEFENDANT'S/RESPONDENT’S SUBMISSIONS
11. The 1 st Defendant/Respondent submits that the application is devoid of merit because the proposed amendments fundamentally alter the character of the suit by abandoning the original claim founded on an alleged purchaser's interest and substituting it with an entirely new contractual claim based on the alleged breach of a facility letter.
12. It argues that such an amendment introduces a distinct cause of action arising from transactions undertaken in 2017 and 2019, which is now statute-barred under the Limitation of Actions Act.
13. The 1st Defendant/Respondent relies on Eastern Bakery v Castelino [1958] EA 461 , Dhanesvar Mehta v Manilal M. Shah [1965] EA 321 , Weldon v Neal (1887) 19 QBD 394 , and Attorney General v Kenya Commercial Bank Ltd [2019] eKLR to submit that although courts have discretion to permit amendments, such discretion cannot be exercised to introduce a new and inconsistent cause of action after the limitation period has expired or to deprive a party of an accrued limitation defence. It maintains that allowing the amendment would occasion substantial prejudice by extinguishing its statutory defence and therefore prays that the application be dismissed with costs.
ISSUES FOR DETERMINATION
1. Whether the Applicant has satisfied the legal threshold for grant of leave to amend the Plaint.
2. Whether the proposed amendments are barred by the Limitation of Actions Act.
3. Whether the 3rd, 4th and 5th Defendants ought to be struck out from the suit.
ANALYSIS AND DETERMINATION
1. Whether the Applicant has satisfied the legal threshold for grant of leave to amend the Plaint
14. The power of the Court to permit amendment of pleadings is donated by Order 8 Rules 3 and 5 of the Civil Procedure Rules. Order 8, Rule 3 provides for amendment of pleading with leave and reads inter alia: -
“(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.”
15. Order 8 Rule 5 provides: -
“(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.”
16. The underlying objective of the provisions is to ensure that the real questions in controversy between the parties are effectively and completely determined. The discretion, though wide, must be exercised judiciously and upon consideration of whether the amendment is necessary for the just determination of the dispute, whether it introduces a new or inconsistent cause of action, and whether it occasions prejudice incapable of compensation by an award of costs.
17. The principles governing amendment of pleadings are now well settled. In Eastern Bakery v Castelino [1958] EA 461 , the former East African Court of Appeal stated:
"It will be sufficient, for purposes of the present case, to say that amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side, and that there is no injustice if the other side can be compensated by costs."
The Court, however, was careful to add:
"The court will not refuse to allow an amendment simply because it introduces a new case... But there is no power to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit... The court will refuse leave to amend where the amendment would prejudice the rights of the opposite party existing at the date of the proposed amendment."
18. Similarly, in Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000] KECA 367 (KLR) , the Court of Appeal, borrowing from the learned authors Chitaley and Rao in Volume 2 of the 6th Edition of the AIR Commentaries on the Indian Civil Procedure Code (p. 2245), restated the settled principles governing amendment of pleadings as follows:
"A party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits provided there has been no undue delay, no new or inconsistent cause of action is introduced, no vested interest or accrued legal right is affected and the amendment can be allowed without injustice to the other side."
19. Having compared the original Plaint with the proposed Amended Plaint, it is apparent that the gravamen of the Plaintiff's claim remains anchored on the same factual substratum, namely the aborted sale transaction relating to L.R. No. 2951/37, the facility letter issued by the 1st Defendant, the subsequent cancellation of the facility, and the financial consequences flowing therefrom.
20. The proposed amendments principally delete the Plaintiff's assertion of a purchaser's proprietary interest in the suit property, abandon the prayer seeking to restrain the 1 st Defendant from exercising its statutory power of sale, and clarify that the Plaintiff's claim is confined to the recovery of monies allegedly paid pursuant to the cancelled facility together with declaratory relief relating to the interest charged.
21. Significantly, the proposed amendments also reduce the quantum of the Plaintiff's claim. Whereas the original Plaint sought the sum of Kshs. 143,138,022/=, the proposed Amended Plaint now claims Kshs. 102,026,354.32/=, representing a reduction of Kshs. 41,111,667.68/=. This reduction is not without significance. Rather than enlarging the Plaintiff's claim or exposing the 1 st Defendant to additional liability, the amendments narrow the monetary relief sought and confine the claim to specific sums allegedly debited pursuant to the impugned facility.
22. In the Court's view, this lends credence to the Applicant's contention that the amendments are intended to streamline the dispute by abandoning certain reliefs and refining the remedies sought, as opposed to introducing a substantially different claim. In Sadera & 2 others v Kerema & 7 others (Civil Appeal 89 of 2019) [2025] KECA 458 (KLR) , it was held that:-
"So long as the cause of action sought to be introduced arises out of the same facts or substantially the same facts as those already pleaded in the plaint sought to be amended, an application for amendment will be allowed."
23. The 1 st Defendant/Respondent has argued that the amendments fundamentally transform the suit into a contractual claim founded upon breach of the facility letter. While that argument is not without force, a reading of both pleadings demonstrates that the facility letter and the aborted transaction were pleaded from the inception as part of the factual matrix giving rise to the dispute. The amendments merely crystallize the reliefs flowing from those pleaded facts after the Plaintiff/Applicant abandoned his proprietary claim over the suit property.
24. In any event, this matter has not proceeded to full hearing. No evidence has been tendered and the 1st Defendant will have the opportunity, if leave is granted, to amend its Defence and raise any additional factual or legal issues that may arise from the amended pleadings. Any inconvenience occasioned thereby is capable of being compensated through costs.
25. The Court is therefore satisfied that the proposed amendments are intended to facilitate the determination of the real controversy between the parties and do not occasion prejudice incapable of compensation.
26. Accordingly, the Court finds that the Applicant has satisfied the threshold for grant of leave to amend the Plaint.
2. Whether the proposed amendments are barred by the Limitation of Actions Act
27. The 1 st Defendant/Respondent contends that the proposed amendments introduce a fresh contractual cause of action arising from transactions undertaken in 2017 and 2019 and are therefore barred by statute.
28. Section 4(1)(a) of the Limitation of Actions Act provides that: -
“The following actions may not be brought after the end of six years from the date on which the cause of action accrued-
a.actions founded on contract;”
29. Order 8 Rule 3(2) of the Civil Procedure Rules provides as follows: -
“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.”
30. The approach is illustrated in Sammy Ng’ang’a Ndungu v Kenya Commercial Bank (2021) eKLR where the Court held that:-
“On whether the proposed amendment will deprive the defendant of the defence of limitation, having found that there is no new cause of action that will be introduced by the proposed amendment, this argument clearly lacks traction.”
31. Similarly, the court in Razak & another v Dhadhlalla (2018) eKLR expressly found that the amended claim was not statute-barred because it flowed directly from the cause of action already pleaded. The learned Judge held that: -
“In my view, the claim for past and future expenses flows directly from the alleged negligence of the Respondent. Negligence was pleaded in the plaint dated 13 th July 2015 together with a claim for special damages. I therefore find that the proposed claim is not time barred.”
32. In the circumstances, and having regard to the provisions of section 4(1)(a) of the Limitation of Actions Act and Order 8 Rule 3(2) of the Civil Procedure Rules, I find that the proposed amendments do not offend the applicable limitation period as they do not introduce a new cause of action. The limitation objection is therefore not a bar to the grant of leave to amend.
3. Whether the 3 rd , 4 th and 5 th Defendants ought to be struck out from the suit
33. The Applicant further seeks the removal of the 3 rd , 4 th and 5 th Defendants on the basis that they were joined solely because of the Plaintiff's earlier claim to a purchaser's interest in L.R. No. 2951/37, a claim that has since been abandoned.
34. The Court's jurisdiction to strike out parties is found under Order 1 Rule 10(2) of the Civil Procedure Rules, which provides that: -
“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.”
35. Order 1 Rule 14 of the Civil Procedure Rules further provides for the time and manner in which the application envisaged under Order 10 (2) of the Civil Procedure Rules is to be brought. It states
“Any application to add or strike out or substitute a plaintiff or defendant may be made to the court at any time before trial by chamber summons or at the trial of the suit in a summary manner .”
36. This position has been enunciated by the courts in several cases including Diamond Trust Bank Kenya Ltd v Richard Mwangi Kamotho & 2 others [2017] KEHC 4674 (KLR ) where the Court stated:-
The rationale behind the provisions is not difficult to find; a party improperly enjoined in a suit does not have to endure the rigour of a full trial and thereby incur expenses before it can vindicate itself. Rule 10 (2) of the Civil Procedure Rules allows parties to move the court to strike out the name of a Plaintiff or Defendant improperly joined or to have a necessary party added “in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit”. That is only possible when the correct parties are before the court.
37. The proposed Amended Plaint no longer seeks any relief against the 3 rd , 4 th and 5 th Defendants. The injunctive relief directed at preserving the suit property has been abandoned and the dispute, as presently framed, is confined to the financial dealings between the Plaintiff and the 1 st Defendant arising from the cancelled facility and the aborted sale transaction.
38. There is nothing before the Court to demonstrate that the continued participation of the 3 rd , 4 th and 5 th Defendants is necessary for the complete adjudication of the remaining issues. Equally, no prejudice has been demonstrated that would be suffered by any party if those Defendants are removed from the proceedings.
39. In the premises, the Court is satisfied that the continued joinder of the 3 rd , 4 th and 5 th Defendants serves no useful purpose and that they ought to be struck out from the suit.
DISPOSITION AND ORDERS
40. For the foregoing reasons, I find the Notice of Motion application to be merited and accordingly make the following orders:
i. The names of the 3 rd , 4 th and 5 th Defendants are hereby struck out from the suit.
ii. Leave is hereby granted to the Plaintiff to file an Amended Plaint in terms of the annexed draft.
iii. The annexed Amended Plaint is hereby deemed as duly filed, upon payment of the requisite court fees.
iv. Each party shall bear its own costs of the Application.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17 th DAY OF SEPTEMBER 2026.
MURUNGA, J
Delivered on virtual platform in the presence of:
Olaha for the Applicant
Mosobera h/b for Kiragu Kimani for the 3 rd Respondent
Kevin Babu - Court Assistant