Neema Lutheran College (Suing through the Executive Board of Management) v Magara & 5 others

4. Further or other order as this Honourable Court may be deem t and just in the circumstances. 2. The application is based on the grounds listed on its face and is supported by an adavit sworn by Sammy Kibore Rotich who deposed that he was the Principal to the Plainti/Applicant and that the initial Plaint was drafted hurriedly with the result that there were typographical errors, hence the need for amendment. 3. The Defendants opposed the application through a replying adavit sworn by Zedekiah Magara, the First Defendant. He deposed that the amendment was not meant to x simple typographical errors but was seeking to swap the entire subject matter under trial by shifting claims from Title No. Kisii/ Bokeira 1/503 to Title No. Kisii/Bokeira 1/508, which constituted an entirely new cause of action over a separate property. 4. Mr Magara further deposed that the Defendants had structured their litigation resources, surveyors' inputs, and historical line of defence around land parcel Number 503, and that allowing the Plainti to unilaterally swap titles at this juncture introduces total chaos to the defence and creates incurable structural prejudice. That the Plainti's attempts to introduce retroactive rental claims of KShs 3,500 per house and guest house yields of KShs 10,000 per month was a procedural violation and that the Plainti's excuse that the initial Plaint was drafted hurriedly was a complete and deliberate misrepresentation of facts. 5. The application was canvassed through written submissions. The Plainti led submissions dated 14th June 2026. The Plainti submitted that the proposed amendments only seek to change the descriptions of the Plainti and the suit property and to add a prayer for loss of user. It relied on the case of Omwoyo vs African Highlands & Produce Co. Ltd [2002] 1 KLR and submitted that the proposed amendments will enable a fair hearing. Consequently, it urged the Court to allow the application. 6. The Defendants led submissions dated 6th June 2026 and submitted that that the proposed amendments were not minor clerical corrections but instead represented a radical and impermissible mutation of the entire case, and a strategy to replace the subject matter of the case with severe and incurable prejudice of the Defendants. They relied on the case of Central Kenya Commercial College v. Kanyua (1979) KLR 266 and contended that while the Court possesses wide discretion to allow amendments, an amendment must be denied if introduces a totally new case, changes the fundamental character of the suit, or causes injustice to the other party that cannot be remedied by costs. 7. The Defendants also submitted that the amendments seek to introduce substantial special damages yet the facts supporting the alleged loss were within the Plainti’s knowledge when it initially approached the Court. They relied on the case of Capital Fish Kenya Limited v. The Kenya Power and Lighting Company Limited [2025] in support of those submissions. 8. The Defendants further submitted that the verifying adavit accompanying the amended plaint was incompetent since it sought to verify a suit with entirely dierent parties from those in the motion. Consequently, the Defendants urged the Court to dismiss the application with costs to them. 9. The Interested Party led submissions dated 25th June 2026 through which it supported the application. 10. I have carefully considered the application, the adavits and the submissions. The sole issue for determination is whether leave to amend the Plaint should be granted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5502/eng@2026-09-22 2

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11. The Court’s jurisdiction to permit amendment of pleadings is guided by Order 8 Rule 3 of the Civil Procedure Rules. The rule empowers the Court, at any stage of the proceedings, to allow any party to amend his pleadings on such terms as may be just. The amendments contemplated under the rule include correction of the name of a party and addition or substitution of a new cause of action. 12. The power donated under the foregoing provision is discretionary and, like every judicial discretion, must be exercised judiciously and not capriciously. Further, it must be recalled the pursuant to Article 159 (2) (d) of the Constitution, justice is to be administered without undue regard to procedural technicalities. 13. The principles to be considered in an application to amend pleadings are settled. Amendments sought before hearing should be freely allowed, if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs. See Eastern Bakery v Castelino (1958) EA 461 and Kayser Investment Ltd v Bamburi Special Products Ltd & 2 others [2026] KECA 1650 (KLR). 14. I have perused the draft Amended Plaint. I note that the proposed amendments concern the description of the Plainti and the Interested Party. The suit property is also being changed from Kisii/ Bokeira I/503 to Kisii/Bokeira I/508. Also to be introduced is a claim for loss of rental income. 15. From the material before the Court, the title which the Plainti now seeks to align its pleadings with was annexed to the pleadings from the commencement of the suit. The documentary foundation of the Plainti's claim has therefore not substantially changed. The Defendants and the Interested Party shall have the opportunity to amend their pleadings to respond appropriately to the Amended Plaint. 16. I am persuaded that the proposed amendments seek to facilitate the determination of the real controversy between the parties. Any prejudice that may be suered by the Defendants can adequately be compensated by an award of costs upon hearing and determination of the suit. 17. I nd merit in Notice of Motion dated 2nd June 2026, and I therefore make the following orders: a. Leave is hereby granted to the Plainti to amend the Plaint herein in terms of the draft Amended Plaint annexed to the adavit in support of Notice of Motion dated 2nd June 2026. b. The Amended Plaint be led and served within 14 (Fourteen) days from the date of delivery of this ruling. c. The Defendants and Interested Party to le and serve, if need be, Amended Defences, within 14 (Fourteen) days of service of the Amended Plaint. d. Costs of Notice of Motion dated 2nd June 2026 shall be in the cause. DATED, SIGNED, AND DELIVERED AT NYAMIRA, THIS 22ND DAY OF SEPTEMBER 2026. D. O. OHUNGO JUDGE Delivered in the presence of: Mr Ondima holding brief for Ms Momanyi for the Plainti No appearance for the Defendants Mr Otieno for the Interested Party https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5502/eng@2026-09-22 3

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Court Assistant: B Kerubo https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5502/eng@2026-09-22 4

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