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ELCPartially AllowedApplication dated 21/3/25 (suit filed 31/1/2021)

Onsare v Acco Limited & another (Environment and Land Case E030 of 2022) [2025] KEELC 4322 (KLR)

High Court of Kenya
29 May 2025
JKJ. G. Kemei
2,164 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a plaintiff to update his claim for higher damages four years into a case, but made him pay the other side's legal costs.

What this practically means

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Executive summary

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The Applicant applied by notice of motion dated 21 March 2025 for leave to amend his plaint, based on a financial analysis by Apple Munch Enterprises, to capture what he described as the correct projected and accurate revenue values. The suit was filed on 31 January 2021 and, though pretrial occurred about two years earlier, the hearing had not commenced. The 1st Respondent opposed, contending the application was an afterthought brought to delay the suit, that the amendments were speculative and unverifiable, and prejudicial. The 2nd Respondent, through Jeremiah Nyegenye, swore that it had been served in November 2023 with a financial report by Salient Financial Consultants Limited which ICPAK/ICPSK confirmed was not registered and licensed, urging that the Applicant approached the court with unclean hands. The court canvassed the application by written submissions. Framing the sole issue as whether the application had merit, the court set out the framework in Section 100 of the Civil Procedure Act and Order 8 Rule 5 of the Civil Procedure Rules, plus textbook and case authorities. It acknowledged the delay and lack of preparedness but found the amendments merely contextualise the claim and clarify pleaded quantum without creating a new cause of action. It declined to rule on the accountants' licensing status at the interlocutory stage, holding that was a matter for trial with cross-examination. Finding no prejudice not compensable in costs, and with the hearing yet to begin, the court allowed the amendments on terms: amended plaint and pretrial bundles within 14 days (default lapsing the orders), defences within 14 days of service, late pleadings expunged, costs of the application to the Plaintiff, and expeditious fixing of the hearing.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application for leave to amend the plaint has merit

Key legal issues

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01

Whether leave to amend the plaint to enhance quantum of loss and damage should be granted at the eve of hearing

Holding

Application allowed; amendments merely contextualise the claim and clarify pleaded quantum without creating a new cause of action, and prejudice is amenable to compensation by costs

Reasoning

The court accepted the delay and the Applicant's lack of preparedness but found that the proposed amendments do not create a new cause of action, only enhancing the quantum of loss and damages already pleaded. As the hearing had not commenced, the level of prejudice was low and could be ameliorated by costs. Guided by Ketteman and Eastern Bakery, the court exercised its discretion in favour of the Applicant so the dispute is adjudicated on merits.

p. 4
02

Whether allegations about the registration/licensing of the Applicant's accountants should be determined at the interlocutory stage

Holding

Court declined to comment; such matters are for the trial court with cross-examination

Reasoning

The 2nd Respondent argued the Applicant's financial reports were prepared by an unregistered firm, tainting the application with unclean hands. The court held this is a matter of evidence for trial, where the accountants' professional standing can be tested by cross-examination, and not fit for determination on an interlocutory amendment application.

p. 4

Legal principles established

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  • Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, which can be compensated by costs
  • Whether an amendment should be granted is a matter for the trial judge's discretion guided by where justice lies

Court orders

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  1. 1.The Applicant's application dated 21/3/25 is allowed on terms
  2. 2.The Applicant to file and serve his amended plaint together with the pretrial bundles within 14 days from the date of the Ruling, in default these orders shall lapse automatically
  3. 3.Upon service, the Defendants at liberty to file and serve their defence and/or amended defence(s) together with pretrial bundles within 14 days
  4. 4.In default any pleadings filed out of time will stand expunged
  5. 5.The Plaintiff to meet the costs of the application
  6. 6.Parties to fix the matter for hearing expeditiously

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JK
majority

Wrote the judgment

Jurisdiction invoked
Section 100 of the Civil Procedure Act and Order 8 Rule 5 of the Civil Procedure Rules

Relief refused

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Costs of the application

Costs awarded against the Applicant despite the application succeeding, as a term of the amendment

p. 5

Costs

The Plaintiff to meet the costs of the application

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Applicant 's application dated the 21/3/25 is allowed on terms;
p. 4final orders
The Applicant to file and serve his amended plaint together with the pretrial bundles within 14 days from the date of this Ruling. In default these orders shall lapse automatically.
p. 4final orders - amended plaint
The Plaintifi to meet the costs of the application.
p. 5costs
Having not found any prejudice that will be occasioned to the Respondents, save, as can be ameliorated by costs, I am inclined to exercise my discretion in favour of the applicant and allow the application so that the issues between the parties may be adjudicated on merits.
p. 4discretion to allow amendment
the amendments in question merely seek to contextualize the Applicant 's claim so as to clarify and bring into clearer focus the issues of the pleaded quantum of the loss and damages
p. 4nature of amendments

Issues in the judgment

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minor

Paragraph numbering is inconsistent - the number 16 is reused for three consecutive paragraphs and 17 for two

minor

Ketteman citation appears garbled as '3S' in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Onsare v Acco Limited & another (Environment and Land Case E030 of 2022) [2025] KEELC 4322 (KLR)", Case Analysis (2025). Application dated 21/3/25 (suit filed 31/1/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4322/eng@2025-05-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.