Stephen Boro Githua v Family Finance Building Society, George Mwangi Hiuki, Muiban Agencies & Land Registrar, Nairobi
The bottom line
#Kenya's Court of Appeal confirmed that correcting your claim's figures is allowed when it helps the court decide the real dispute fairly.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in refusing leave to amend the plaint
- 2.Whether the Judge applied the correct provision of law in determining the amendment application
- 3.Whether the contents of an affidavit sworn in a chamber summons constitute a pleading for purposes of amendment
Key legal issues
#Correct legal basis for determining an application for leave to amend pleadings
The High Court erred by applying Order VI rule 6(1), a provision unrelated to the substance of the chamber summons brought under Order VIA rule 3(3), instead of the amendment provisions.
The application before Kasango, J. was brought under the now repealed Order VIA rule 3(3) (now Order 8) seeking to amend the amended plaint. The Judge instead considered Order VI rule 6(1) on inconsistent allegations. The Court of Appeal found the provision adopted was apparently not related to the substance of the application, amounting to proceeding on a wrong provision of law, warranting appellate interference.
Whether affidavit contents constitute a pleading
An affidavit is evidence on oath, not a pleading; the Judge erred in treating the appellant's deposition that he borrowed Sh.7.5 million as a pleading inconsistent with the plaint.
The Judge dismissed the amendment application because the appellant's affidavit in an earlier chamber summons stated he borrowed Sh.7.5 million. The Court held that a pleading includes a summons, petition, statement of claim, defence, reply or counterclaim, all amendable, whereas an affidavit is evidence. Construing affidavit contents as a pleading was an error of law.
Whether the intended amendment was inconsistent with the original claim
The intended amendments were not inconsistent with the original claim, so leave to amend ought to have been granted.
The appellant discovered from documents obtained after filing suit that he borrowed Sh.3.5 million, not Sh.7.5 million as pleaded. The Court found the amendments were geared to placing a full and clear case before the court for effectual determination on the merits, and the respondents would suffer no prejudice since they too could amend their defences and evidence would unravel the true position at trial.
Legal principles established
#- Amendments that contradict previous pleadings, are intended to delay a fair trial, or would cause prejudice not compensable by costs should not be allowed.
- Amendments geared to placing a full and clear case before the court for determination on the merits ought to be allowed.
- The contents of an affidavit constitute evidence on oath and do not constitute a pleading.
Court orders
#- 1.Appeal allowed
- 2.Orders of the High Court refusing leave to amend set aside
- 3.Appellant granted leave to further amend his plaint within 30 days and to file and serve the amended plaint for hearing in the High Court
- 4.Respondents to pay the costs of the application to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 360 of 2003
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the High Court (Civil Appeal jurisdiction; no specific constitutional provision cited)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
amendments to pleadings which contradict previous pleadings in the same suit or are intended to delay a fair trial or are likely to prejudice the other party to an extent that damages cannot compensate that party, should not be allowed
where intended amendments are geared to place a full and clear case before the court so that it is effectually and finally determined on its merits, ought to be allowed for that is the way to do justice
As is trite law the contents of an affidavit constitute evidence on oath. An affidavit does not constitute a pleading.
we allow this appeal, set aside the orders in question. The appellant prayed that he proceeds to amend his plaint further and that we grant. He will further amend his plaint in the next 30 days file and serve the same for the hearing of the suit in the High Court.
The respondents are ordered to pay the costs of this application to the applicant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Boro Githua v Family Finance Building Society, George Mwangi Hiuki, Muiban Agencies & Land Registrar, Nairobi", Case Analysis (2015). Civil Appeal No. 173 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/982/eng@2015-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.