Juliette Mugambi & Another v Summerville Properties Limited

filed the present suit vide an undated Plaint seeking, among other reliefs, a declaration that the manner in which the 1 st Defendant had undertaken development of plot L.R. No. 28428/80 contravened the Plaintiffs' right to quiet and peaceful possession and enjoyment of their property, plot L.R. No. 12825/196, known as Villa 33, Five-Star Paradise Estate; a permanent injunction restraining the Defendants from further excavation, grading, drilling or construction on the abutting plot; special damages of Kshs. 51,000; general damages; interest; and costs of the suit. 3. The Applicant deposed that it had since become imperative to amend the Plaint, as the circumstances of the case had changed following the issuance, of authority to undertake structural retrofitting and repair works on the residential development situated on plot L.R. No. 12825/196, Villa No. 33, Five-Star Paradise Estate, Kiambu Municipality, on 13th November 2025. 4. It was the Applicant’s disposition that as a consequence of the above, the prayers and cause of action had changed, hence the need to amend the Plaint to enable the court to properly and effectually reflect and determine the real questions in controversy between the parties. 5. The Applicant further stated that no prejudice would be occasioned to the Defendant/Respondents by the intended amendment, and that it was in the interest of justice that the application be allowed as prayed. RESPONDENT’S RESPONSE ELCLC CASE NO E132 OF 2026 – RULING Page 2 | 10

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6. The Respondent filed grounds of opposition dated 8 th February, 2026, on the grounds that the application is frivolous, brought in bad faith, and seeks to introduce new cause of action meant to delay the expeditious finalization of the case. 7. The Respondent further filed a Replying affidavit dated 9 th February,2026, and deponed that the application is an abuse of the court process, having been founded on half-truths and misrepresentations in an attempt to mislead the court. The Respondent stated that the proposed amendments had not been brought timeously, having come after the matter was already certified ready for hearing, hence a way to prolong the hearing of the suit. 8. It was the Respondent’s case that the proposed amendments were inconsistent with the existing cause of action and sought, in effect, to introduce an entirely new and different cause of action in the Plaint before the Court, thereby departing from the original pleadings. The Respondent urged the court to dismiss the Application with costs. PLAINTIFF/APPLICANTS’ SUBMISSIONS 9. Counsel for the Plaintiff/Applicants filed submissions dated 10 th March, 2026, and identified one issue for determination, as to whether the Plaintiff/Applicants should be granted leave to amend the Plaint. 10. Counsel for the Applicants relied on Orders 8 Rule 3(1) and Rule 5(1) of the Civil Procedure Rules, and Halsbury's Laws of England, 4th Edition (re-issue), Vol. 36(1), paragraph 76, on the ELCLC CASE NO E132 OF 2026 – RULING Page 3 | 10

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principles governing amendment of pleadings, and submitted that contrary to the 1st Defendant/Respondent's contention that the proposed amendments introduced a new and different cause of action, the prayers sought in the proposed amended Plaint stemmed from the development on Plot L.R. No. 28428/80, already the subject matter of the original Plaint. 11. According to counsel, the cause of action remained unchanged, being grounded on the 1st Defendant's unlawful construction of a storey building involving heavy excavation, compaction and earthworks, which ongoing construction activities constituted a nuisance to the Plaintiffs' quiet possession and use of their property, L.R. No. 12825/196, Thindigua, Kiambu, on which Villa V33, Five Star Paradise Runda Estate, is erected. Further, any reliefs arising from the 1st Defendant’s actions were a natural and foreseeable consequence of the pleaded facts and did not amount to introduction of a new cause of action. 12. Counsel relied on the cases of Daykio Plantations Limited v Galba Mining Limited & 4 Others [2025] KEHC 4504 (KLR), which referred to Eastern Bakery v Castelino [1958] 1 EA 461, on the principles governing amendment of pleadings, and submitted that this authority discredited the 1 st Defendant's contention, since amendments ought to be allowed before hearing as long as they do not prejudice the other party. 13. It was counsel’s submission that the claim was for special damages suffered as a result of the 1 st Defendant’s negligence and failure to take diligent steps to stop further adverse effects on the Plaintiffs' building. Further, the 1st Defendant had been compelled to vacate ELCLC CASE NO E132 OF 2026 – RULING Page 4 | 10

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their home and obtain alternative accommodation at a rent of Kshs. 350,000/- per month from 23 rd April, 2024 until their property was repaired and fit for occupation on 29th December, 2025. 14. Counsel submitted that the special damages arose from the same construction works already pleaded in the original Plaint and had been specifically pleaded as required by law, and that the 1 st Defendant would suffer no prejudice if the amendment was allowed, since it arose from facts already pleaded and the 1 st Defendant would have the opportunity to respond to the amended Plaint. 15. In conclusion, counsel submitted that the court was enjoined under Article 159(2)(d) of the Constitution of Kenya, 2010 to administer justice without undue regard to procedural technicalities, and that allowing the amendment would serve the interests of justice by enabling the court to determine the real issues in controversy and avoid multiplicity of suits. Counsel urged the court to allow the Application as prayed. 16. The Respondent relied on the Replying affidavit filed and urged the court to dismiss the Application with costs. ANALYSIS AND DETERMINATION 17. The issue for determination is whether the Plaintiffs/Applicants have met the threshold for leave to amend the Plaint. The law on amendment of pleadings is provided for under Order 8 Rule 3 of the Civil Procedure Rules 2010; more specifically Order 8 Rule 5 of the Civil Procedure Rules stipulates as follows: ELCLC CASE NO E132 OF 2026 – RULING Page 5 | 10

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“(5) An amendment may be allowed under subrule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action 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 suit by the party applying for leave to make the amendment.’ 18. Halsbury’s Laws of England, 4th Ed. (re-issue), Vol. 36 (1) at paragraph 76, states as follows on amendment of pleadings: “…The purpose of the amendment is to facilitate the determination controversy of the real question between the parties to in any proceedings, and for this purpose the court may at any stage order the amendment of any document, either on application by any party to the proceedings or of its own motion. …. The person applying for amendment must be acting in good faith. Amendment will not be allowed at a late stage of the trial if on analysis of it is intended for the first time thereby to advance a new ground of defence. If the amendment for which leave is asked seeks to repair an omission due to negligence or carelessness, leave to amend may be granted if the amendment can be made without injustice to the other side…”. ELCLC CASE NO E132 OF 2026 – RULING Page 6 | 10

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19. In the case St Patrick’s Hill School Limited V Bank of Africa Kenya Limited [2018] KEHC 2539 (KLR), the court cited with approval the case of Ochieng and Others V First National Bank of Chicago, CA No. 147 of 1991 where the Court of Appeal set out the principles under which Courts may grant leave to amend the pleadings as follows: “ (a) the power of the court to allow amendments is intended to determine the true substantive merits of the case; b. the amendments should be timeously applied for; c. power to amend can be exercised by the court at any stage of the proceedings; d. that as a general rule however late the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other 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 limitations Act subject however to powers of the court to still allow and amendment notwithstanding the expiry of current period of limitation.” 20. The Plaintiff sought to amend the Plaint on the basis that the authority issued on 13th November, 2025 for structural retrofitting and repair work to Villa No.33 had changed the circumstances surrounding the dispute. The Plaintiff contended that the proposed amendments intended to bring before the court the consequences allegedly arising from the construction activities complained of in ELCLC CASE NO E132 OF 2026 – RULING Page 7 | 10

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the original plaint, including costs incurred in obtaining alternative accommodation and undertaking restoration works. 21. The original cause of action arose from the construction activities undertaken by the 1st Defendant on L.R No.28428/80 and their alleged effect on the Plaintiffs’ property L.R No.12825/196, and therefore the proposed amendment arose from the same factual background and sought to particularize the consequences suffered as a result of the activities. 22. The Respondents, however, stated that the application was brought after the matter had been certified ready for hearing and the proposed amendment would delay the hearing of the suit. This argument is contrary to the purpose of amendment of pleadings as they can be done any time before Judgment with sufficient cause, which will not prejudice the opposing party. 23. This would be a perfect time to allow the amendment before the commencement of the hearing of the suit. Further, the Respondent has not demonstrated any prejudice that he would suffer if the amendment is allowed and the fact that the matter had been certified for hearing does not take away the court’s jurisdiction to allow the amendment. 24. The Respondent further argued that the amendment would introduce a new cause of action and from the proposed amendment; it shows that the Plaintiff seeks to include the expenses incurred for alternative accommodation, repair and restoration expenses, which arise from the same construction activities that gave rise to the original suit. ELCLC CASE NO E132 OF 2026 – RULING Page 8 | 10

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25. This amendment does not in any way introduce a new cause of action, as it arises from the original cause of action and the activities complained of happened while this case was pending. The amendment will not automatically give the plaintiffs an advantage, as the plaintiffs must prove their case on a balance of probabilities. Likewise, the defendant will have an opportunity to rebut the plaintiff’s allegations or the claim. 26. This court also finds guidance in the scholarly work of Bullen and Leake & Jacob's Precedents of Pleading, 12th Edition, which provides as follows concerning amendment of pleadings: “…power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages); that as a general rule, however late, the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side; that the proposed amendment must not be immaterial or useless or merely technical; that 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…” 27. Consequently, I find that the Notice of Motion dated 28 th January, 2026, has merit and is therefore allowed as prayed. The Plaintiff is to file and serve the amended Plaint within 7 days; the Respondent ELCLC CASE NO E132 OF 2026 – RULING Page 9 | 10

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is to file an amended Defence, if need be, within 7 days upon service. DATED, SIGNED AND DELIVERED AT LIMURU THIS 30 TH DAY OF SEPTEMBER, 2026. HON. LADY JUSTICE (DR.) M. A. ODENY ELC JUDGE In the Presence of: Ms. Njeri holding brief for Ochieng for defendants Ms. Gitonga for Mogeni for plaintiffs. Mr. Gitonga– Court Assistant ELCLC CASE NO E132 OF 2026 – RULING Page 10 | 10

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