Pakaja Limited v Trustees of Mombasa Simba Sports Club & 3 others; Singh Sabha Community (Interested Party) [2022] KEELC 450 (KLR)
The bottom line
#A Mombasa court allowed a company to amend its land fraud claim while rejecting an attempt to strike out the entire suit.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff should be granted leave to amend the Plaint to plead particulars of fraud
Yes. The amendment sought only to add particulars of fraud to an existing cause of action, was made without mala fides, caused no prejudice not curable by costs, and complied with Order 2 Rule 10 of the Civil Procedure Rules, 2010.
The Court exercised its wide discretion under Order 8 Rules 3 and 5 of the Civil Procedure Rules, 2010. Although filed nearly three years after the Plaint, the application was within reasonable time as amendments may be brought any time before conclusion. The original Plaint alleged fraud without particulars, contrary to Order 2 Rule 10(1)(a). Applying Kassam v Bank of Baroda and Daniel Ngetich v K-Rep Bank, the amendment related to the original cause of action, introduced no new cause of action, and worked no injustice; hence leave was granted.
Whether the suit against the 1st Defendant ought to be struck out for want of a cause of action
No. The striking-out application was fatally defective as an omnibus combining Rule 15(1)(a) with (b), (c) and (d), and the Plaint disclosed a cause of action capable of being cured by amendment.
Order 2 Rule 15(2) bars evidence on an application under Rule 15(1)(a), while grounds (b), (c) and (d) permit evidence. Citing Olympic Escort International and Milenium Chuma, the Court held that combining these grounds is inappropriate and prejudicial. Applying D.T. Dobie, a suit should only be summarily dismissed if plainly and obviously hopeless and beyond redemption by amendment; here the Plaint raised triable issues of fraud particularisable by amendment.
Who bears the costs of the applications
Costs follow the events under Section 27(1) of the Civil Procedure Act: the Plaintiff succeeded and was awarded costs of the dismissed application, while the amendment application was allowed with no orders as to costs.
Section 27(1) of the Civil Procedure Act, Cap 21 provides that costs follow the events. The results were that the Plaintiff's amendment application succeeded and the 1st Defendant's striking-out application was dismissed for lack of merit, warranting an award of costs of that dismissal to the Plaintiff.
Legal principles established
#- Amendments to pleadings should be freely allowed at any stage before conclusion of the suit so long as they do not cause prejudice or injustice not compensable by costs, and particulars of fraud must be specifically pleaded
- Where a party seeks to strike out pleadings, an application cannot properly combine ground 15(1)(a) (which bars evidence) with grounds 15(1)(b), (c) and (d) (which permit evidence); such an omnibus application is fatally defective
- Striking out a suit is a draconian remedy to be resorted to sparingly, only where a pleading is hopeless and incurable by amendment
- When faced with an application to strike out and an application to amend, the court should deal with the amendment application first
Court orders
#- 1.The application by the Plaintiff dated 24th January 2022 be and is hereby allowed with no orders as to costs
- 2.The Plaintiff be and is hereby granted leave and directed to file and serve the Amended Plaint within fourteen (14) days from the date of the ruling
- 3.The 1st, 2nd, 3rd and 4th Defendants be and are hereby granted corresponding leave to file and serve their amended statements of Defence and/or Counter Claim, if they so wish, within 14 days upon service of the amended Plaint
- 4.The Plaintiff be and is hereby granted seven (7) days to file and serve replies to the filed Amended Defence and/or Counter Claim upon service
- 5.The Notice of Motion application dated 20th January, 2022 by the 1st Defendant be and is hereby dismissed for lack of merit with costs to the Plaintiff
- 6.The suit should be disposed of within ninety (90) days and be mentioned on 18th May, 2022 for Pre-Trial Conference and case management under Order 11 of the Civil Procedure Rules, 2010
- 7.The Plaintiff be awarded costs from the dismissal of the application by the 1st Defendant
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21; Order 2 Rules 4, 6(2), 10 and 15 and Order 8 Rules 3 and 5 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Salim v Ibrahim (Land Case E026 of 2023) [2025] KEELC 4177 (KLR)[2025] KEELC 4177 (KLR)29 May 2025
- Salim v Ibrahim (Land Case E026 of 2023) [2025] KEELC 4177 (KLR)[2025] KEELC 4177 (KLR)29 May 2025applied
Cite this brief
#Cite this brief
Caselaw, "Pakaja Limited v Trustees of Mombasa Simba Sports Club & 3 others; Singh Sabha Community (Interested Party) [2022] KEELC 450 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/450/eng@2022-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.