1. In the application before this court dated 19th March 2025, the petitioners/applicants seek to have the amended draft petition annexed to the application deemed as properly filed and costs.
2. As can be discerned from the grounds on the face of the application and the affidavit sworn in support by Sammy Kiplagat Bartuin on 19th March 2025, the application is premised on the grounds that there are events and circumstances which took place after filing the petition for instance; the 1st respondent has since fenced off the business premises erected by the petitioners on the suit properties resulting in lose of income and business; that this claim needs to be addressed in the petition through the proposed amendments which will not alter the nature and substance of the petition and that the respondents shall not be prejudiced by the amendments sought.
3. The application is not opposed.
4. The Substantive law on amendment of pleadings is found in Section 100 of the Civil Procedure Act which provides;
“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.”
5. Order 8 rule 3 of the civil procedure rules provides for amendment of pleadings with leave of court. The power to amend pleadings can be exercised at any stage of the proceedings before judgment is entered as long as it meets certain criteria as stated in the case of John Nyagaka Osoro v Reynold Karisa Charo & 5 others [2021] Eklr quoting Halsbury’s Laws of England, 4th Ed. (re-issue), Vol. 36(1) at paragraph 76, -
“…The purpose of the amendment is to facilitate the determination of the real question in controversy between the parties to any proceedings, and for this purpose the court may at any stage order the amendment of any document, either on application by any party to the proceedings or of its own motion. …. The person applying for amendment must be acting in good faith. Amendment will not be allowed at a late stage of the trial if on analysis of it is intended for the first time thereby to advance a new ground of defence. If the amendment for which leave is asked seeks to repair an omission due to negligence or carelessness, leave to amend may be granted if the amendment can be made without injustice to the other side…”.
6. I’ve perused the court record and noted that when the petitioners filed the petition, they simultaneously filed a notice of motion application seeking among other conservatory orders; that the respondents be restrained from encroaching, trespassing, putting up a fence, alienating, dealing or otherwise interfering with the applicants’ properties. When the application came for inter parties hearing, the court was informed by counsels for the respective parties that, that the 1st respondent had moved into the suit properties, taken possession and erected a fence thus shutting out the petitioners from gaining access.
7. It is not disputed that some of the ongoing developments in the suit properties occurred after the petition was filed making it necessary to amend the petition. The amendments proposed are for a claim of special and general damages necessitated by the alleged actions of the 1st respondent of fencing off the suit properties which forced the petitioners to close their businesses. In my view, the application has been made in good faith and the proposed amendments will not alter the nature or substance of the petition but will assist the court determine the real question in controversy. I also do not see what injustice the respondents will suffer if the orders sought are granted.
8. Consequently, I find the application to have merit and l allow prayer 2 with no order on costs as the application was undefended.
9. Orders accordingly.
Dated, signed and delivered at Iten this 17th day of June, 2025.
In the presence of;-
Ms. Chepkwong holding brief for Mr. Nyamweya for the Petitioners
N/A for the Respondents
Court Assistant: Christine