James Oluoch Ogando v Kenya Ports Authority Pension Scheme (Defined Benefits) & another

e) An order for the 1st defendant to provide a list of properties sold by public tender and other related details. f) An order for the 1st defendant to provide a list of all the residential houses occupied by its employees since 2002. 2. The application was based upon the grounds set out on the body of the motion and the contents of the supporting affidavit sworn by the plaintiff on 07.12.2024. The supporting affidavit, however, did not lay any basis for the orders sought save to state that the orders sought would not cause “any loss or injustice” to the defendants. 3. The application was opposed by the 1 st defendant which filed a replying affidavit sworn on 24.02.2026. The 2 nd defendant filed ground of opposition dated 28.02.2025. The 2 nd defendant contended that the application was vexatious, bad in law and otherwise an abuse of the court process. It was further contended that a permanent injunction could not issue at the interlocutory stage. 4. When the application came up for directions it was directed that the same shall be canvassed through written submissions. The parties were consequently granted timelines within which MOMBASA ELC CASE NO. 73 OF 2021 (RULING) Page 2

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to file and exchange their respective submissions. The record shows that the plaintiff filed his submissions on 27.03.2026 and supplementary submissions on 04.09.2026. The 1 st defendant filed its submissions on 05.03.2026 whereas the 2 nd defendant filed theirs on 19.03.2026. 5. The court has considered the plaintiff’s said application, the responses thereto as well as the submissions on record. The court is of the view that the main questions for determination herein are the following: a) Whether the plaintiff is entitled to leave to amend the plaint further. b) Whether the plaintiff is entitled to the permanent injunction sought. c) Whether the plaintiff is entitled to the production order on the final report by Rubyland Ltd. d) Whether the plaintiff is entitled to an order for provision of the information sought. 6. The legal principles to be considered in an application for leave to amend a pleading are fairly well settled in Kenya. An application for leave to amend a pleading before the hearing should be freely allowed if the amendment can be made without causing undue prejudice to the adverse party which MOMBASA ELC CASE NO. 73 OF 2021 (RULING) Page 3

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cannot be adequately compensated by an award of costs. The primary consideration is whether or not the amendment sought is necessary for the determination of the real issues in controversy. See Central Kenya Limited vs Trust Bank Limited & 5 others [2000] KECA 367 (KLR). 7. The court is of the view that the plaintiff should be allowed to bring his entire case before the court for adjudication once and for all. The policy of the law is to discourage litigation by instalments. The court is thus satisfied that the plaintiff’s application for leave to amend his plaint further should be granted notwithstanding the fact that he has previously amended his plaint. 8. The court is not satisfied that the plaintiff is entitled to a permanent injunction to restrain the 2nd defendant from selling or disposing off some of the assets of the 1 st defendant for at least three reasons. First, a permanent injunction can only be issued upon adjudication of the dispute whereby the rights of the parties have been determined upon a full hearing. Second, there is no deposition on record to show that the plaintiff may suffer irreparable loss or injury which cannot be adequately compensated by an award of damages. The plaintiff’s supporting affidavit was a bare 4 paragraph deposition which MOMBASA ELC CASE NO. 73 OF 2021 (RULING) Page 4

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sought orders on the basis that the defendants shall not suffer any loss or prejudice if the orders were granted. Third, the properties sought to be protected belong to the 1 st defendant which has the necessary legal capacity to protect its interest in the properties. The 1st defendant has not sought any such protection before the court. 9. The court has considered the submissions and material on record on the request for production of documents and information. The court agrees with the 1 st and 2nd defendants’ submissions that the plaintiff ought to follow due process and the specific legal mechanisms provide by law for obtaining the same. If the plaintiff intended to obtain the documents under the Civil Procedure Act or the Rules he ought to follow the necessary mechanisms for that purpose. If he intended to obtain the same under the Access to Information Act, he should follow the procedures established under the Act. The plaintiff cannot simply seek such documents and information under Order 8 rule 3 of the Civil Procedure Rules or Section 100 of the Civil Procedure Act which only deal with amendment of pleadings and amendment of documents. The court finds and holds that the plaintiff has not made out a case for the grant of MOMBASA ELC CASE NO. 73 OF 2021 (RULING) Page 5

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the order for production of the final report by Rubyland limited or the other information sought from the 2nd defendant. 10. The upshot of the foregoing is that the court finds and holds that the plaintiff is only entitled to leave to amend his pleading. However, he has not made out a case for the grant of the rest of the orders sought in the application. As a result, the court makes the following orders for disposal of the motion dated 07.12.2024. a) Leave be and is hereby granted to the plaintiff to amend his plaint further. b) The plaintiff shall file and serve the further amended plaint within 14 days from the date hereof. c) The rest of the orders sought in the motion are hereby refused. d) Costs of the application to be borne by the plaintiff. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 8TH DAY OF OCTOBER 2026 MOMBASA ELC CASE NO. 73 OF 2021 (RULING) Page 6

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Y. M. ANGIMA JUDGE In the presence of: No appearance for the Plaintiff Mr Kongere for the 1st Defendant Mr Nyakoe for the 2nd Defendant Court Assistant: Hinga MOMBASA ELC CASE NO. 73 OF 2021 (RULING) Page 7

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