1. I have considered the Notice of Motion application dated 3rd April, 2024 together with the replying affidavit sworn on 26th June, 2024, the submissions of the parties, and the applicable law.
2. The application seeks the following orders:
a. The Honourable Court be pleased to release to the Plaintiff, the sum of Kshs. 1,000,000/= deposited herein by the Plaintiff as security for the status quo orders issued (spent).
b. This Honourable Court be pleased to grant the Plaintiffs leave to amend the Plaint herein in terms of the attached Amended Plaint.
c. The attached Amended Plaint be deemed duly filed and served upon payment of the requisite court fees.
3. As regards the release of Kenya Shillings one million, the parties agreed by consent that the same be refunded. Parties agreed to inform the court at the next mention date if an order of the court is required for release of the same, or if the refund has been effected by then.
4. As regards the prayers relating to amendment of the pleadings. I note the applicable law is as follows:
Order 8, Rule 3 of the Civil Procedure Rules states as follows:
“[Order8, rule 3.] Amendment of pleading with leave.
(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.”
“Order 8, rule 3(5)
(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.
5. Further to the above, Order 8, Rule 5 of the Civil Procedure Rules states as follows;
“[Order 8, rule 5.] General power to amend.
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.”
6. In the case of Nairobi Court of Appeal Civil Appeal No. 94 of 2003, Coffee Board of Kenya v Thika Coffee Mills Limited & 2 others [2014] KECA 409 (KLR), the Honourable Court stated as follows;
“The above text was cited with approval by this Court in Wareham t/a AF Wareham & 2 others –vs- Kenya Post Office Savings Bank- Civil Appeal Nos. 5 & 48 of 2002. Mulla, The Code of Civil Procedure, 18th Ed, Vol.2 at pages 1751-1752: - has also set out the following which are also a useful guide when dealing with amendments of pleadings: -
“On the basis of the different judgments, it is settled that the following principles should be kept in mind in dealing with the applications for amendment of the pleadings-
i. All amendments should be allowed which are necessary for determination of the real controversies in the suit;
ii. The proposed amendment should not alter and be a substitute of the cause of action on the basis of which the original list was raised;
iii. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts would not be allowed to be incorporated by means of amendment;
iv. Proposed amendment should not cause prejudice to the other side which cannot be compensated by means of costs;
v. Amendment of a claim or relief barred by time should not be allowed;
vi. No amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time;
vii. No party should suffer on account of the technicalities of law and the amendment should be allowed to minimize the litigation between the parties;
viii. The delay in filing the petitions for amendment of the pleadings should be properly compensated by costs;
ix. Error or mistake, which is not fraudulent, should not be made the ground for rejecting the application for amendment of pleadings.””
7. From the above law, it is apparent that amendment of pleadings is allowed after the close of pleadings provided that the Applicant seeks leave to amend its pleadings. Leave is a matter of discretion, to be exercised judicially, in order to determine whether or not the amendment is to be allowed.
8. In KENYATTA NATIONAL HOSPITAL VERSUS KENYA COMMERCIAL BANK (2203) 2 CA 528, the court held interalia that:-
“The principles governing the grant of leave to amend pleadings are well settled. The general rule is that amendments to pleading sought before the hearing should be freely allowed if they can be made without injustice to the other side and there is no injustice if the other party can be compensated by costs.”
9. In the present matter, vide its ruling dated 11 March, 2024 this court, at paragraph 21 of its said ruling stated as follows:
“21. In the present matter, given that the sale has already taken place, the Applicant’s right to redeem the property has been extinguished by the auction sale. Accordingly, in the event there is any merit to the claim that the property was sold at undervalue, the remedy available remains as a claim against the bank in damages. The same is not however a merited ground for the grant of an injunction”
10. Guided by the law as stated above, and reading the above paragraph in the said ruling, I am of the view that order (e) sought in the intended amended plaint is not appropriate. For the avoidance of doubt, order (e) directs the registrar of land to cancel the transfer of the suit property to the second Defendant; rectify records; and reinstate the Plaintiff as the registered proprietor. That issue has already been determined by this court in the said ruling and the Plaintiff may not, by way of amendment, include a prayer that has been conclusively determined.
11. I do not however see how the amendments at paragraph 43 A or 43 B of the intended amended plaint would prejudice the Defendants. The impugned paragraphs are simply a clarification of the quantum of loss suffered by the Plaintiff, which amounts, she intends to sue for recovery of, by way of a claim in damages. In any event, the Plaintiff will still have to prove the said claim at trial. Therefore, I allow the said proposed amendments.
12. Based on the above, I find and hold that the application succeeds in part. The proposed amendments with the exception of order (e) are allowed.
13. The applicant shall bear the costs of the application given that it is the party seeking to amend its pleadings.
2. The application seeks the following orders:
a. The Honourable Court be pleased to release to the Plaintiff, the sum of Kshs. 1,000,000/= deposited herein by the Plaintiff as security for the status quo orders issued (spent).
b. This Honourable Court be pleased to grant the Plaintiffs leave to amend the Plaint herein in terms of the attached Amended Plaint.
c. The attached Amended Plaint be deemed duly filed and served upon payment of the requisite court fees.
3. As regards the release of Kenya Shillings one million, the parties agreed by consent that the same be refunded. Parties agreed to inform the court at the next mention date if an order of the court is required for release of the same, or if the refund has been effected by then.
4. As regards the prayers relating to amendment of the pleadings. I note the applicable law is as follows:
Order 8, Rule 3 of the Civil Procedure Rules states as follows:
“[Order8, rule 3.] Amendment of pleading with leave.
(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.”
“Order 8, rule 3(5)
(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.
5. Further to the above, Order 8, Rule 5 of the Civil Procedure Rules states as follows;
“[Order 8, rule 5.] General power to amend.
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.”
6. In the case of Nairobi Court of Appeal Civil Appeal No. 94 of 2003, Coffee Board of Kenya v Thika Coffee Mills Limited & 2 others [2014] KECA 409 (KLR), the Honourable Court stated as follows;
“The above text was cited with approval by this Court in Wareham t/a AF Wareham & 2 others –vs- Kenya Post Office Savings Bank- Civil Appeal Nos. 5 & 48 of 2002. Mulla, The Code of Civil Procedure, 18th Ed, Vol.2 at pages 1751-1752: - has also set out the following which are also a useful guide when dealing with amendments of pleadings: -
“On the basis of the different judgments, it is settled that the following principles should be kept in mind in dealing with the applications for amendment of the pleadings-
i. All amendments should be allowed which are necessary for determination of the real controversies in the suit;
ii. The proposed amendment should not alter and be a substitute of the cause of action on the basis of which the original list was raised;
iii. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts would not be allowed to be incorporated by means of amendment;
iv. Proposed amendment should not cause prejudice to the other side which cannot be compensated by means of costs;
v. Amendment of a claim or relief barred by time should not be allowed;
vi. No amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time;
vii. No party should suffer on account of the technicalities of law and the amendment should be allowed to minimize the litigation between the parties;
viii. The delay in filing the petitions for amendment of the pleadings should be properly compensated by costs;
ix. Error or mistake, which is not fraudulent, should not be made the ground for rejecting the application for amendment of pleadings.””
7. From the above law, it is apparent that amendment of pleadings is allowed after the close of pleadings provided that the Applicant seeks leave to amend its pleadings. Leave is a matter of discretion, to be exercised judicially, in order to determine whether or not the amendment is to be allowed.
8. In KENYATTA NATIONAL HOSPITAL VERSUS KENYA COMMERCIAL BANK (2203) 2 CA 528, the court held interalia that:-
“The principles governing the grant of leave to amend pleadings are well settled. The general rule is that amendments to pleading sought before the hearing should be freely allowed if they can be made without injustice to the other side and there is no injustice if the other party can be compensated by costs.”
9. In the present matter, vide its ruling dated 11 March, 2024 this court, at paragraph 21 of its said ruling stated as follows:
“21. In the present matter, given that the sale has already taken place, the Applicant’s right to redeem the property has been extinguished by the auction sale. Accordingly, in the event there is any merit to the claim that the property was sold at undervalue, the remedy available remains as a claim against the bank in damages. The same is not however a merited ground for the grant of an injunction”
10. Guided by the law as stated above, and reading the above paragraph in the said ruling, I am of the view that order (e) sought in the intended amended plaint is not appropriate. For the avoidance of doubt, order (e) directs the registrar of land to cancel the transfer of the suit property to the second Defendant; rectify records; and reinstate the Plaintiff as the registered proprietor. That issue has already been determined by this court in the said ruling and the Plaintiff may not, by way of amendment, include a prayer that has been conclusively determined.
11. I do not however see how the amendments at paragraph 43 A or 43 B of the intended amended plaint would prejudice the Defendants. The impugned paragraphs are simply a clarification of the quantum of loss suffered by the Plaintiff, which amounts, she intends to sue for recovery of, by way of a claim in damages. In any event, the Plaintiff will still have to prove the said claim at trial. Therefore, I allow the said proposed amendments.
12. Based on the above, I find and hold that the application succeeds in part. The proposed amendments with the exception of order (e) are allowed.
13. The applicant shall bear the costs of the application given that it is the party seeking to amend its pleadings.