Kariuki v Tofina Rom Builders Limited & 2 others (Environment and Land Case Civil Suit 334 of 2015) [2022] KEELC 2507 (KLR)
The bottom line
#A Kenyan court allowed a property buyer to amend his claim late in the trial, confirming amendments are permitted if made in good faith and costs can fix any prejudice.
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 plaintiff's application for leave to amend the amended plaint, brought after the plaintiff had testified, should be allowed
- 2.Whether the delay in bringing the application was explained and fatal
- 3.Whether the proposed amendments would introduce a new cause of action or substantially change the character of the suit
- 4.Whether the amendments would prejudice the defendants
Key legal issues
#Discretion to allow amendment of pleadings after a party has testified
The discretion is exercised in favour of amendment where the application is in good faith, necessary for determining the real issues, and any prejudice is compensable in costs; the plaintiff had not yet closed his case and the defendants had not given evidence.
The court applied the settled principles in Bullen & Leake & Jacobs and the cited Kenyan authorities. Although there was delay, it was explained: the plaintiff noted deficiencies in his pleadings at the hearing and sought amendment before closing his case. The proposed reliefs (specific performance, alternative allocation, refund with interest, damages) arose from causes of action already pleaded. The defendants could amend their defence and had yet to give evidence, so no irreparable prejudice would arise.
Whether the amendments introduced new causes of action or changed the character of the suit
No; the new prayers arose from the same causes of action already pleaded and did not substantially alter the character of the suit.
The court examined the draft further amended plaint and found the additions were prayers for specific performance of the agreement with the 1st and 2nd defendants and, in the alternative, allocation of an alternative property, refund of the purchase price with interest, and damages for breach of contract. These flowed from the same contract and facts already pleaded, and the claim against the 3rd defendant on the sale of the suit property remained the same in substance.
Legal principles established
#- Amendments to pleadings may be allowed at any stage of the proceedings and should be freely allowed provided they are made in good faith and the other side can be compensated in costs
- An amendment may be allowed even if it adds or substitutes a new cause of action, unless it changes the action into one of a substantially different character
Court orders
#- 1.The plaintiff's Notice of Motion dated October 15, 2020 is allowed in terms of prayer 1
- 2.The plaintiff shall file the further amended plaint within 14 days from the date of the ruling
- 3.The defendants shall be at liberty to amend their statement of amended defence within 14 days from the date of service of the further amended plaint
- 4.The defendants shall have the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent powers of the court and Order 8 rules 3 and 5 of the Civil Procedure Rules
Relief refused
#Defendants' request to dismiss the application with costs to the plaintiff
No valid grounds were shown; the court allowed the application but awarded the defendants the costs of the application
Costs
The defendants shall have the costs of the application.
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.
as a general rule, however late the amendment is sought to be made it should be allowed if made in good faith provided the costs can compensate the other side
All amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot be properly compensated in costs.
These reliefs arise from the same causes of action that are already pleaded.
The application is allowed in terms of prayer 1 thereof. The plaintiff shall file further amended plaint within 14 days from the date hereof.
Issues in the judgment
#The judgment text does not disclose the suit's case number, making full identification of the matter impossible from this extract
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kariuki v Tofina Rom Builders Limited & 2 others (Environment and Land Case Civil Suit 334 of 2015) [2022] KEELC 2507 (KLR)", Case Analysis (2022). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2507/eng@2022-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.