Kimathi & 2 others v Nyambu

deponent stated that it is necessary that the amendment is done to include the two applicants in the suit to enable the court to reach a fair and just determination and avoid unnecessary parallel suits. That the respondent will not suer any prejudice if the leave sought is granted. 4. The application is opposed by the respondent who led grounds of opposition as follows-; 1. The intended amendment seeks to introduce new causes of action that are incapable of being dealt with by way of Originating Summons and would require a substantive suit. 2. That the intended amendment will introduce causes of action against persons who are not parties to these proceedings and there is no prayer to join them as parties, and in particular, the persons alleged to have committed breach of trust and the National Bank of Kenya. 3. That the issues introduced in the intended amendment cannot be tried together with the claim for adverse possession. 5. The respondent wants the application dismissed with costs. 6. The application was canvassed by way of written submissions. The applicants led submissions dated 15th March 2024 while the respondent’s submissions are dated 22nd September, 2024. 7. I have considered the application, the grounds of opposition and the submissions led together with the authorities relied on. This is an application for amendment of the Originating Summons dated 28th September 2022. The courts will normally allow amendments of pleadings at any stage of the proceedings if it can be done without occasioning injustice or prejudice to the other party/parties and on such terms as to costs or otherwise as may be just. The relevant provisions of law is to be found under Order 1 Rule 3 and 5 of the Civil Procedure Rules that grants a court general powers to allow a party to amend pleadings and it provides as follows-; “ 3(a) subject to Order 1 Rules 9 and 10, Order 24 Rules 3, 4, 5 and 6 and the following provisions of this Rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleading. 8. (2) Where an application to the court for leave to make an amendment such as mentioned in sub-rule (3) and (4) or (5) is made after any relevant period of limitation current at the date of ling the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just to do so. (3) An amendment to correct the name of a party may be allowed under sub-rule (2) notwithstanding that it is alleged that the eect of the amendment will be to substitute new party if the court is satised that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of other person intending to sue or intended to be sued.” The general power to amend pleadings is donated by section 100 of the Civil Procedure Act while Order 8 Rule 5 states as follows-; 5(1) For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13866/eng@2024-12-19 2

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or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just. (2) This rule shall not have eect in relation to a judgment or order. 9. It is clear from the above provisions of the law that the court has discretionary power to amend pleadings at any stage before judgment for purposes of determining the real question or issue between the parties. That discretionary power must however, be exercised judiciously and not whimsically. It is also clear that the court may, in its discretion, allow amendment to correct the name of a party notwithstanding that the eect of such an amendment will be to substitute a new party. 10. In this case, the amendment sought seeks to introduce new parties and a new cause of action on customary trust. The respondent has not demonstrated what prejudice, if any, he will suer if the application for amendment is allowed. Instead, the respondent introduced issues of fact in form of previous suit through submissions. In my view, that was improper. On the contrary if such leave to amend is granted, it would avoid a multiplicity of proceedings over the matter. I fail to understand what injustice would result to the respondent by allowing the amendment. The trial has not even started in the matter. In my view, the respondent can adequately be compensated by costs. 11. In the case of Eastern Bakery Vs Castalino (1958) EA 461 it was stated as follows-; “ It will be sucient, for purposes of the present case to say that amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side and that there is no injustice if the other side can be compensated by costs...” 12. The upshot is that I allow the notice of motion dated 18th February, 2024 as prayed. The applicants are directed to le and serve the amended originating summons within 14 days of this ruling. I also give the respondent 14 days from the date of service to le his amended response, if any. 13. Orders accordingly. DATED, SIGNED AND DELIVERED AT MERU THIS 19TH DAY OF DECEMBER, 2024. in the presence of Court Assistant – Tupet Ms Gikundi for applicants Ms Gumato for respondent C.K YANO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13866/eng@2024-12-19 3

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