Shadrack Kariuki M'laaria v Joseph Kiptanui Samoei & 5 Others

1. This ruling is in respect of the plaintiff/applicant’s notice of motion/application dated 20th January, 2026. Through the application, the applicant prays that the Court be pleased to admit his amended plaint, dated 20th January 2026, by correcting a typographical error in the description of the suit property. In particular, the applicant seeks to amend the description of the suit property from Land Reference Number L.R. No. 9397 to L.R. No. 9379. 2. The application is premised on the ground that he erroneously described the suit property in the plaint as L.R No.9397 as opposed to 9379; that the mistake in the description of the suit property is an inadvertent typographical error which does not affect the substance of the claim or the issues for determination; that all documents on record identify the suit property as L.R. No. 9379, and that the correction is necessary to ensure accuracy and consistency of the Court record. 3. The applicant points out that the Court had previously suo moto corrected the typographical error in the description of the suit property in its earlier ruling; that the respondents NYAHURURU H.ELC NO 35 OF 2017 – RULING 2|Page

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did not appeal the decision of the Court and that the respondents’ defence and counterclaim refers to L.R. No. 9379 showing that they understood the property in dispute. 4. According to the applicant, the amendment sought neither introduces a new cause of action or new facts nor introduces new parties. No prejudice incapable of being compensated by award of costs will be occasioned. 5. The applicant is apprehensive that failure to correct the error may result in unnecessary objections, applications challenging evidence, and disruption of the ongoing proceedings yet prejudice, if any to be occasioned on the respondents is compensable by award of costs. 6. The applicant urges the Court to, in the interests of justice and efficient disposal of the case, allow the application. 7. The defendants/respondents have opposed the application on the ground that it lacks merit and is an attempt to fundamentally alter the applicant’s case after most of the applicant’s witnesses have already testified. In that regard, the respondents point out that the applicant has in her NYAHURURU H.ELC NO 35 OF 2017 – RULING 3|Page

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pleadings identified the suit property as L.R. No. 9397. The respondent contends that the proposed amendment introduces a new cause of action, L.R. No. 9379, a different parcel of land, hence not a mere correction of a typographical error. 8. Based on the principle that parties are bound by their pleadings, the respondents contend that the applicant cannot change her case after evidence has been led. 9. The respondents further contend that the application has been brought too late, after the matter has substantially proceeded and after approximately fourteen (14) years of litigation; that the applicant had ample opportunity over the years to discover and correct the alleged mistake; and that the alleged error in the applicant’s pleadings only became apparent during cross-examination of PW3. 10. The respondents have denied the applicant’s claim that the Court corrected the pleadings and contend neither the Court nor the respondents can amend the applicant’s pleadings. NYAHURURU H.ELC NO 35 OF 2017 – RULING 4|Page

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11. The respondents further contend that the applicant’s previous amended plaint was filed outside the time given by the Court. 12. The respondents lament that repeated amendments of the pleadings have delayed final determination of the suit thereby violating the principle that litigation must come to an end. 13. Pursuant to directions given to the effect that the application be disposed of by way of written submissions, parties filed submissions, which I have read and considered. 14. In her submissions, the applicant identifies the issue for the court’s determination to be; whether the Court should grant her leave to amend her pleadings to correct a typographical error in the suit property. 15. Concerning that issue, the applicant basically reiterated the averments/contentions in the affidavit sworn in support of the application. NYAHURURU H.ELC NO 35 OF 2017 – RULING 5|Page

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16. Concerning that the law applicable to the application, the applicant has made reference to Article 159 (2) (d) of the Constitution; Sections 1A, 1B, 3A and 99 of the Civil Procedure Act and Order 8 Rules 3 and 5 of the Civil Procedure Rules and the following decided cases: i) Patel vs B.D. Joshi (1952) 19 EACA 42 for the proposition that amendments should generally be freely allowed, however late, provided they do not occasion injustice that cannot be compensated by costs. ii) Coffee Board of Kenya vs Thika Coffee Mills Ltd & 2 Others [2014] eKLR for principles that undergird an application for amendment of pleadings in that; a) Amendments necessary for determining the real controversy should be allowed; b) Amendments should not substitute a new cause of action; c) Amendments should not prejudice the opposing party beyond compensation by costs; NYAHURURU H.ELC NO 35 OF 2017 – RULING 6|Page

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d) Innocent mistakes should not ordinarily defeat an amendment; e) Courts should not determine the merits of the proposed amendment at the amendment stage. iii) Victor Naivanoi Kiminta vs Gladys Kiminta Prinsloo [2019] eKLR for the proposition that amendments affecting the substance of pleadings may still be permitted where justice requires. iv) Eastern Bakery vs Castelino [1958] EA 461 where the essence of amendments was explained thus; “amendments should enable litigation to proceed on the true facts and real issues in controversy rather than technical errors.” v) Institute for Social Accountability & Another vs Parliament of Kenya & 3 Others [2014] Eklr, for the proposition that amendments help ensure disputes are determined on the true facts intended to be relied upon by the parties. NYAHURURU H.ELC NO 35 OF 2017 – RULING 7|Page

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17. Maintaining that she has made a case for being granted leave to amend her pleadings, the applicant urges the Court to allow her application as sought. 18. On their part, the respondents rehashed the averments/contentions in their replying affidavit and based on the decision in the case of Angelina Chepng'etich Kimati vs Tom Mong'are Nyariki & Another [2021] eKLR, the respondents maintain that allowing the amendment would shift the dispute from one parcel of land to another, introduce a new cause of action, require reopening of pleadings, force the defendants/respondents to amend their pleadings, necessitate recalling witnesses and effectively restart the hearing which will cause further delay in a case that has already been in court for about 14 years. 19. The rrespondents submit that there is no valid plaint capable of amendment because the plaintiff failed to file the amended plaint within the 30 days granted by the Court in its ruling of 10th December, 2019. The respondents point out that the amended plaint was filed on 4th March, 2020, without leave of the Court. NYAHURURU H.ELC NO 35 OF 2017 – RULING 8|Page

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20. Terming the applicant’s application an attempt to regularize an improperly filed amended plaint, the respondents urge the Court to find the applicants’ application untimely, prejudicial, and an abuse of the court process and dismiss it with costs to them. 21. I have carefully read and considered the application by the applicant, the response thereto, the submissions and the legal principles that undergird grant of leave to amend pleadings espoused in the cases cited by the parties. 22. I find the sole issue arising from the instant application to be whether the applicant has made up a case for being granted leave to amend his plaint in the manner proposed. 23. The legal principles that undergird grant of leave for amendment of pleadings were distilled in the case of Habib and 3 others v Hussein & 3 others (2026) KEELC 1157 KLR thus: “20. The legal framework on amendment of pleadings is contained in Section 100 of the Civil NYAHURURU H.ELC NO 35 OF 2017 – RULING 9|Page

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Procedure Act and Order 8 of the Civil Procedure Rules. 21. Order 8 Rule 1 (1) of the Civil Procedure Rules provides for amendments without leave of court before pleadings are closed. Where pleadings have closed, a party has to seek leave of Court to effect any amendments. This, is per provisions of Order 8 Rule 3 (1) and (2) of the Civil Procedure Rules which states that: “(1) 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. (2) Where an application to the court for leave to make an amendment such as is mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such subrule if it thinks just so to do.” 22. Order 8 Rule 5 (1) of the Civil Procedure Rules provides as follows:“ NYAHURURU H.ELC NO 35 OF 2017 – RULING 10 | P a g e

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(1) 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.” 24. In the case of Joseph Ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago [1995] eKLR the Court of Appeal set out the principles for granting amendment of pleadings and stated thus: “…..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 different character which could more conveniently be made the subject of a fresh action; that the plaintiff 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 notwithstanding allow the such expiry of an amendment 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 NYAHURURU H.ELC NO 35 OF 2017 – RULING 11 | P a g e

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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.” 24. In Tarmohamed v Mariakani Holdings Limited & another [2022] KECA 122 (KLR) the Court of Appeal stated: “….rules that apply to amendment of pleadings will apply, namely that amendments should be liberally allowed, if they can be made without injustice to the other side, or where such injustice can be compensated by costs.” On perusal of the Court record, I note the matter has not proceeded for hearing. Further, I note the fulcrum of the dispute in the proposed further further amended Plaint still revolves around ownership of the suit properties. I opine that the amendments sought are not going to substitute a new cause of action as claimed by the 1 st Defendant but only includes certain reliefs over the suit property that will enable the Court appreciate the facts in respect to the root of the Plaintiffs’ title as well as other issues revolving around the dispute over the said property. Further, the Defendants have not demonstrated any prejudice they will suffer if the amendment sought are granted. On a keen reading of the legal provisions cited, I note the Court is granted NYAHURURU H.ELC NO 35 OF 2017 – RULING 12 | P a g e

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discretion to allow amendments for purposes of determining the real question in controversy between the parties. To my mind, the Defendants will also be allowed to amend their Defences including Counterclaim and since pleadings will reopen, parties can also file further witness statements to support their respective claims. In the foregoing while associating myself with the decisions cited, I will allow the Plaintiffs to amend their further amended Plaint and file a reply to Defence including Defence to Counterclaim. I will also grant the Defendants leave to amend their respective Defences and Counterclaim if need be.” 25. In applying the above cited legal principles and guidelines to the circumstances of this case, where the plaintiff/ applicant merely seeks to amend his plaint to capture the proper description of the suit property and where the defendants/respondents have not demonstrated that grant of leave to effect the amendment will occasion them prejudice incapable of being compensated by award of costs, I exercise the discretion vested in this Court and allow the plaintiff/applicant to effect the amendment sought. I also grant leave to the defendants/respondents to, within NYAHURURU H.ELC NO 35 OF 2017 – RULING 13 | P a g e

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Fourteen (14) days from the date of delivery of this ruling, amend their pleadings, if need be. 26. The costs of the application shall abide the outcome of the suit. Ruling dated, signed and delivered at Nyahururu this 28th day of September, 2026 through Microsoft teams. ................................. L. N. WAITHAKA JUDGE In the presence of:Mr Ndungu Kuria for the Plaintiff/ Applicant Mr. Konosi for the Defendants/ Respondents Court Assistant: Bedan NYAHURURU H.ELC NO 35 OF 2017 – RULING 14 | P a g e

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