Introduction and Background
1. This ruling determines the plaintiff’s Notice of Motion dated 22 October 2024 by which leave is sought to file a Further Amended Plaint. The proposed pleading sets out, with greater particularity, the account numbers, contractual interest rates and outstanding balances that the plaintiff says are due under the loan facilities that ground this suit.
2. The application is opposed by the fourth defendant through ground of opposition and written submission. He contends that the draft Further Amended Plaint is incurably defective because it is not accompanied by the verifying affidavit required by Order 4 rule 1(2) of the Civil Procedure Rules and because it fails to comply with the endorsement and colour‑coding requirements of Order 8 rule 7. He therefore invites the Court to dismiss the motion with costs.
3. The parties canvassed the motion through written submissions which, together with the pleadings and the cited authorities, I have carefully considered.
Issues for Determination
4. Two issues arise for determination: first, whether the proposed amendments are necessary for the just and effectual resolution of the dispute; and, secondly, whether the procedural lapses identified by the fourth defendant are fatal so as to justify the refusal of leave.
5. Order 8 rules 3 and 5 of the Civil Procedure Rules vest in the Court a wide discretion to allow amendments at any stage of the proceedings so that the real question in controversy may be determined, provided that no prejudice incapable of compensation by an award of costs is occasioned to the opposite party. This liberal approach has been affirmed in, among other decisions, Daniel Ngetich & Another v K‑Rep Bank Limited [2013] eKLR and Pankaja Limited v Trustees of Mombasa Simba Sports Club [2022] eKLR.
6. That discretion, though broad, is not unfettered. It may be declined where the proposed amendment is mala fide, introduces a time‑barred claim or flagrantly ignores mandatory procedure: see Omar (Estate of Warsame Omar Farah) v Abdi & 4 Others [2024] eKLR.
7. With regard to verifying affidavits, guided by the decision of the court in Bosire Ogero v Royal Media Services Ltd [2015] eKLR, it is evident that although the omission of a verifying affidavit renders a plaint defective, such a defect is curable by permitting the plaintiff to file the affidavit subsequently where no prejudice is shown. As for colour‑coding, the Court of Appeal in Macharia v Guardian Bank Ltd [2003] eKLR characterised non‑compliance with Order 8 rule 7 as a formal lapse that can be corrected on terms.
8. Moreover, the proposed amendments do not introduce a new cause of action, a new party, or a new head of relief. They merely particularise matters already pleaded and will assist the Court to identify with precision the contractual obligations in dispute and the extent of the fourth defendant’s exposure as guarantor. I am therefore satisfied that the amendments are necessary and in the interests of justice.
9. As regards the procedural objections, the impugned pleading is only a draft and does not yet form part of the record. Therefore, the Court is empowered to grant leave subject to conditions that will secure strict compliance with the Rules. In view of Article 159 (2)(d) of the Constitution, which obliges courts to administer justice without undue regard to procedural technicalities, and the overriding objective in sections 1A and 1B of the Civil Procedure Act, I am persuaded that the defects identified by the respondent may be cured with appropriate directions.
10. Finally, the fourth defendant has not demonstrated any prejudice that cannot be ameliorated by an award of costs or, if necessary, by granting him a corresponding opportunity to amend his defence.
11. Therefore, balancing the need for procedural order with the imperative of substantive justice, I am persuaded that the ends of justice will be better served by allowing the amendment but strictly regulating the manner of its perfection.
Orders
12. Accordingly, I make the following orders:
1. Leave is granted to the Plaintiff to file and serve a Further Amended Plaint.
2. The Further Amended Plaint shall:
a. be filed within fourteen (14) days of today;
b. be accompanied by a verifying affidavit sworn by a duly authorised officer of the Plaintiff in compliance with Order 4 Rule 1(2) & (4);
c. bear endorsements showing the date of each amendment and comply with the colour-coding requirements of Order 8 Rule 7.
3. The Defendants shall be at liberty to amend their respective Defences within fourteen (14) days of service of the perfected Further Amended Plaint.
4. Costs of the present Motion shall be borne by the Applicant.
1. This ruling determines the plaintiff’s Notice of Motion dated 22 October 2024 by which leave is sought to file a Further Amended Plaint. The proposed pleading sets out, with greater particularity, the account numbers, contractual interest rates and outstanding balances that the plaintiff says are due under the loan facilities that ground this suit.
2. The application is opposed by the fourth defendant through ground of opposition and written submission. He contends that the draft Further Amended Plaint is incurably defective because it is not accompanied by the verifying affidavit required by Order 4 rule 1(2) of the Civil Procedure Rules and because it fails to comply with the endorsement and colour‑coding requirements of Order 8 rule 7. He therefore invites the Court to dismiss the motion with costs.
3. The parties canvassed the motion through written submissions which, together with the pleadings and the cited authorities, I have carefully considered.
Issues for Determination
4. Two issues arise for determination: first, whether the proposed amendments are necessary for the just and effectual resolution of the dispute; and, secondly, whether the procedural lapses identified by the fourth defendant are fatal so as to justify the refusal of leave.
5. Order 8 rules 3 and 5 of the Civil Procedure Rules vest in the Court a wide discretion to allow amendments at any stage of the proceedings so that the real question in controversy may be determined, provided that no prejudice incapable of compensation by an award of costs is occasioned to the opposite party. This liberal approach has been affirmed in, among other decisions, Daniel Ngetich & Another v K‑Rep Bank Limited [2013] eKLR and Pankaja Limited v Trustees of Mombasa Simba Sports Club [2022] eKLR.
6. That discretion, though broad, is not unfettered. It may be declined where the proposed amendment is mala fide, introduces a time‑barred claim or flagrantly ignores mandatory procedure: see Omar (Estate of Warsame Omar Farah) v Abdi & 4 Others [2024] eKLR.
7. With regard to verifying affidavits, guided by the decision of the court in Bosire Ogero v Royal Media Services Ltd [2015] eKLR, it is evident that although the omission of a verifying affidavit renders a plaint defective, such a defect is curable by permitting the plaintiff to file the affidavit subsequently where no prejudice is shown. As for colour‑coding, the Court of Appeal in Macharia v Guardian Bank Ltd [2003] eKLR characterised non‑compliance with Order 8 rule 7 as a formal lapse that can be corrected on terms.
8. Moreover, the proposed amendments do not introduce a new cause of action, a new party, or a new head of relief. They merely particularise matters already pleaded and will assist the Court to identify with precision the contractual obligations in dispute and the extent of the fourth defendant’s exposure as guarantor. I am therefore satisfied that the amendments are necessary and in the interests of justice.
9. As regards the procedural objections, the impugned pleading is only a draft and does not yet form part of the record. Therefore, the Court is empowered to grant leave subject to conditions that will secure strict compliance with the Rules. In view of Article 159 (2)(d) of the Constitution, which obliges courts to administer justice without undue regard to procedural technicalities, and the overriding objective in sections 1A and 1B of the Civil Procedure Act, I am persuaded that the defects identified by the respondent may be cured with appropriate directions.
10. Finally, the fourth defendant has not demonstrated any prejudice that cannot be ameliorated by an award of costs or, if necessary, by granting him a corresponding opportunity to amend his defence.
11. Therefore, balancing the need for procedural order with the imperative of substantive justice, I am persuaded that the ends of justice will be better served by allowing the amendment but strictly regulating the manner of its perfection.
Orders
12. Accordingly, I make the following orders:
1. Leave is granted to the Plaintiff to file and serve a Further Amended Plaint.
2. The Further Amended Plaint shall:
a. be filed within fourteen (14) days of today;
b. be accompanied by a verifying affidavit sworn by a duly authorised officer of the Plaintiff in compliance with Order 4 Rule 1(2) & (4);
c. bear endorsements showing the date of each amendment and comply with the colour-coding requirements of Order 8 Rule 7.
3. The Defendants shall be at liberty to amend their respective Defences within fourteen (14) days of service of the perfected Further Amended Plaint.
4. Costs of the present Motion shall be borne by the Applicant.