Doshi & 2 others v Director of Public Prosecution & 6 others

a. THAT this honourable court be pleased to grant the petitioners leave to amend their petition dated 25th April 2023 b. THAT the Amended petition be deemed as duly filed and served upon payment of requisite court fees and the Respondents do have corresponding leave to file any amended pleadings and/or put in a response if need be c. Costs be in the cause. 2. The application was premised on grounds that the 7th Respondent had gone ahead to alter the title on the suit property by removing the caveat that had been placed on it which information would necessitate the amendment of the petition for the court not to proceed on false facts as already pleaded and the reliefs sought after. 3. The other ground raised was that the prosecution in MCCR NO E5257 of 2023 Republic Vs Ashok Labhshanker Doshi & 2 others is proceeding with the matter despite there being a letter from the 1 st Respondent directing the withdrawal of the charges as against the petitioners. 4. The 5th Respondent opposed the application in a replying affidavit sworn by its director one Jennifer Ntheya Wambua. She deponed that the application was an abuse of the court process being that this court had disallowed a similar application dated 25 th April 2023 in a ruling delivered on the 31st July 2024 and that the Applicant was seeking to challenge the said ruling disguising the intent in this application. She further deponed that the court as above had 2 ELCPET E017 OF 2023 R

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dismissed the application on the basis of abuse of court having filed multiple suits touching on the same matter seeking the same reliefs 5. The application was canvassed by way of written submissions and at the time of filing these submissions, only the Applicant had filed submissions dated 4th June 2026. Applicant’s submissions 6. The Applicant submitted that the court is at liberty to allow for the amendment of the petition at any stage relying on the provision of rule 18 of the constitution of Kenya (Protection of Rights and fundamental freedoms) Practice and procedure rules 2013 and the case of Rajani Vs Rajani (1972) EA 223 7. Counsel summitted that there was need to amend being that there was a change in circumstances. That there were no conservatory orders on the suit property, the application seeking to have the same having been dismissed with the ruling of the 31 st July 2024.That the dismissal therefore rendered the original prohibitory orders in the petition as obsolete and the petition therefore no longer captured the real issues in controversy. Counsel further summited that the petitioners had been evicted from the suit property which was new information that was captured in the orders as in the amended petition. That the charges as against the petitioners by the 1st Respondent had been withdrawn which criminal prosecution gave rise to this petition. That despite the same, the prosecution of the case is still 3 ELCPET E017 OF 2023 R

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active, the more reasons to amend the petition to ventilate that the said prosecution is being maintained for improper reasons 8. The applicants submitted that allowing the amendment will not prejudice the Applicant in any way and neither had the 7 th Respondent indicated any prejudice that will be occasioned to them as they will be given an opportunity to respond to the same. 9. The applicant’s counsel further submitted that the 7 th Respondent in his replying affidavit was seeking to respond to the amended petition whereas the question before the court is whether the applicants should be allowed to amend the petition which is a procedural issue. 10. Counsel further disputed the argument that the application was res judicata indicating that the court had already decided on the same in a ruling delivered on the 5th October 2023.That the said that the petition was not res judicata as the issues in the petition touched on who is the legal owner of the suit property LR NO 209/3850 which issue had not been dealt with to conclusion by any court Analysis and determination 11. the Accordingly, after reviewing the notice of motion application, replying affidavit together with the submissions of the applicants, I find that the only issue for determination is whether the petitioners should be allowed to amend their petition. 12. The legal framework governing the amendment of constitutional petitions is found in our Rule 18 of the Constitution of 4 ELCPET E017 OF 2023 R

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Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (“the Rules”), which states. “A party that wishes to amend its pleadings at any stage of the proceedings may do so with the leave of the Court.” 13. The decision to grant or deny leave to a party to amend pleadings is at the discretion of the court, based on law, evidence, and reason. Typically, the court permits amendments deemed necessary to ascertain the real issues in dispute or to prevent the proliferation of lawsuits, provided there has been no undue delay, no new or conflicting cause of action is introduced, and no vested interest or accrued legal right is compromised. Moreover, the amendment may be granted without causing injustice to the opposing party. 14. The question of amending pleadings is not new and has been addressed in many court rulings. The general rule is that courts typically permit amendments at any stage of proceedings, provided they do not cause injustice or prejudice to the opposing party. If there is some prejudice, it can often be offset by an award of costs. The purpose of amending pleadings is to allow the parties to modify their pleadings to ensure that litigation proceeds based on the actual facts and intended relief, rather than on inaccurate assertions or claims. The authority to amend enhances the court's ability to focus on the case's substantive merits rather than being constrained by procedural formalities. In the case of Joseph Ochieng & 2 others Trading as Aquiline Agencies Vs First National Bank 5 ELCPET E017 OF 2023 R

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of Chicago [1995] KECA 31 (KLR), the Court of Appeal distilled the applicable principles where an amendment is sought as being that a) The power of the Court to allow amendment is intended to determine the substantive merits of the case b) The amendment should be timeously applied for; c) The power to amend can be exercised by the court at any stage of the proceedings; d) That, as a general rule, however, in the amendment, if sought to be made, should be allowed, if made in good faith, provided costs can compensate the direct side. e) 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 the limitation of actions, subject, however, to the power of the court to still allow an amendment notwithstanding the expiry of the current period of limitation. 15. I have looked at the intended amendments and I find that the amendments will not be prejudicial to the Respondents. These amendments are based off the letter attached in the supporting affidavit marked as AD-1 by the 1 st Respondent who advises the 2nd Respondent to withdraw the criminal case as against the petitioners. The Applicant has indicated that this letter absolves them of any criminal liability which forms a huge basis of the current petition 6 ELCPET E017 OF 2023 R

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hence need for the court to address itself on the correct facts as it stands. 16. It is my view that the amendment does not alter the cause of action. The said amendments are intended to bring into the attention of this court that the charges as against the petitioners have been withdrawn which charges gave rise to this petition. It is the petitioners’ argument that the fact that the criminal prosecution in the lower court is still ongoing despite withdrawal of the charges, and the main reason why the petition should be amended which reason I find just. 17. It is my view that, as the matter has not yet undergone pretrial directions regarding the substantive hearing of the petition, granting leave to the petitioners to amend their pleadings would serve the interests of justice, as all issues in dispute will be addressed conclusively. Furthermore, the Respondents shall be granted leave to amend their documents accordingly. Hence, I find that such relief is merited. Final disposition 18. For these reasons, I allow the application dated 5th December 2025 as follows: 7 ELCPET E017 OF 2023 R

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i. The Petitioners are granted leave to amend the Petition as set out in the draft amended petition. ii. The amended Petition to be filed and served within 14 days. iii. The Respondents are hereby granted corresponding leave to amend and serve their responses if they so wish within 14 days of service of the Amended Petition. iv. Costs will be in the petition. It is so ordered. DATED, SIGNED and DELIVERED via e-mail at NAIROBI on this 15th day of July 2026. MOHAMMED N. KULLOW JUDGE 8 ELCPET E017 OF 2023 R

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