Kiai v Mwangi

4. He contends that the Plaint raises the question of trespass while the proposed amendments not only introduces a totally new cause of action, but also substantially changes the fundamental character of the suit from one of trespass to one of ownership and rent. Further, that Honourable Lady Justice Lucy Mbugua had already made a Ruling on the issue of further amendments and /or addition of further evidence and denied the Defendant an opportunity to file further documents. He points out that pleadings had closed. 5. He reiterates that the proposed amendments are time barred to the extent that the Plaintifi introduces a new paragraph 5A which alleges that the Defendant was in occupation of the suit premises since the year 2011 and seeks for rent from that time. 6. The application was canvassed by way of written submissions. Submissions 7. The Plaintifi urges the Court to allow his proposed amendments in accordance with Order 8 Rule 3 of the Civil Procedure Rules. To buttress his averments, he relied on the following decisions: Central Kenya Limited v Trust Bank Limited & 5 others [2002] eKLR and Daykio Plantations v Galba Mining Limited & 4 others (Civil Suit 31 of 2016 & Civil Case 230, 238 & 237 of 2015 & 499 of 2016 (consolidated) [2025] KEHC 4504 (KLR) Commercial and Tax (2 April 2025). 8. On his part, the Defendant submits that the Plaintifi’s attempt to explain the delay in seeking amendments at this juncture is that his previous Advocates made an error in the Plaint, which reason does not hold water as his current advocate on record filed his Notice of Change of Advocate on the 22nd January 2018, which is over eight (8) years ago. Further, that the amendments seek to introduce a new cause of action which is time barred by statute thus ofiends the provisions of the Limitation of Actions Act. 9. He also submits that the application is grounded on bad faith and to fill gaps in evidence as it is solely informed by the Plaintifi’s attempt to sanitize his submission as he did not plead the prayers that he canvasses about therein. Further, that the amendments sought are inconsistent with the original cause of action, whose efiect is reframing the case and thus denying him a defense. 10. To buttress his averments, the Defendant relied on the following decisions: Cofiee Board of Kenya v Thika Mills Limited & 2 others [2014] eKLR; Mwangi S Kaimenyi v Attorney General & another [2014] eKLR; Kassam v Bank of Baroda (Kenya) limited [2002] KEHC 1109(KLR); Graham Rioba Sagwe & 2 others v Fina Bank Limited & 5 others [2017] eKLR and Eastern Bakery v Castelino [1958] 1 EA 461. Analysis and Determination 11. Upon consideration of the instant Notice of Motion application including the respective afidavits and rivalling submissions, the only issue for determination is whether the Plaintifi should be granted leave to amend his Plaint. 12. The Plaintifi contends that his previous advocate did not bring out all the issues for determination, including non-payment of rent by the Defendant for the period that he has been in occupation of the suit property. 13. The Defendant has pointed out to the Court that the Plaintifi’s current advocate on record filed his Notice of Change of Advocate on the 22nd January 2018, which is over eight (8) years ago. He contends that the amendments sought will change the character of the suit from that of trespass to one of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2613/eng@2026-05-05 2

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ownership and rent, which is statute barred by dint of the Limitation of Actions Act. Further, that the call for amendments is a tactic to fill in evidence. 14. The Court has discretion to grant a party leave to amend pleadings. Order 8 Rule 3 (1) of the Civil Procedure Rules provides that: “ (1) 15. Further, Order 8 Rule 5 (1) of the Civil Procedure Rules provides as follows: “ (1) 16. 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 pleadings.” For purposes of determining the real question in controversy between the parties, or of correcting any defector error in any proceedings, the court may either of its own motion 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.” In Central Kenya Ltd v Trust Bank Ltd & 5 others Civil Appeal No.222 of 1998 [2000] eKLR, the Court of Appeal stated that: “ … the guiding principle in applications for leave to amend is that 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 properly be compensated for in costs…..” 17. The Court of Appeal also stated as follows in the case of Joseph Ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago [1995] eKLR; “ …..if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially difierent character which could more conveniently be made the subject of a fresh action; that the plaintifi will not be allowed to reframe his case or his claim if by an amendment of the plaint the Defendant would be deprived of his right to rely on Limitation Acts but subject however to powers of court to still allow such an amendment notwithstanding the expiry of current period of Limitation: that the court has powers even (in special circumstances) to allow an amendment adding or substituting a new cause of action if the same arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to seek the amendment.” 18. In this instance, I note the Plaintifi has sought leave to amend his Plaint claiming his former advocate failed to include certain issues in dispute. I however note that the current Advocate has been representing him for around eight (8) years. On perusal of the Court record, I note on the 6th October, 2025, the Plaintifi testified as PW1 and was even cross examined by the Defendant’s Counsel and reexamined by his Advocate. During cross examination, he confirmed that he had not pleaded anything to do with rent payment. Further, it emerged that there had been a related criminal case at Kibera, where the accused person had been discharged. I note, issues of renting the suit premises to tenants also emerged during cross examination. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2613/eng@2026-05-05 3

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19. After the hearing, the Plaint has now filed the instant application where he seeks to include prayers for payment of rent including mesne profits as well as demolition of structures on the suit property. His main reason for seeking an amendment too late in the day is that his erstwhile Advocate did not include the same in the pleadings. From the Plaint, it is clear that the cause of action in this matter arose in 2012 and he now seeks to include issues touching on tort whose limitation period is between three (3) and six (6) years by dint of the Limitation of Actions Act. I opine that the amendments sought will change the character of the suit, which is statute barred under the Limitation of Actions Act. 20. Based on the facts before me while relying on the legal provisions cited and associating myself with the decisions quoted, I find that the amendment sought has been brought with undue delay and no proper explanation has been profiered except for blaming an erstwhile Advocate. Further, I find that the Plaintifi seeks to introduce an inconsistent cause of action and intends to patch his evidence and this is malafides and will actually cause an injustice to the Defendant as it will change his Defence. In the foregoing, inasmuch as an amendment can be allowed at any time, I am unable to grant the Plaintifi leave to amend his Plaint. 21. In the circumstances, I find the instant Notice of Motion application unmerited and will disallow it. 22. Costs will be in the cause. DATED SIGNED AND DELIVERED AT NAIROBI THIS 5TH DAY OF MAY, 2026 CHRISTINE OCHIENG JUDGE In the presence of: Mombo for Defendant Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2613/eng@2026-05-05 4

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