High Court 2425 of 2021

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 404 OF 2015 ROBERT MUCHANGI KIRAGU........PLAINTIFF -VERSUSNIC BANK LIMITED..................1ST DEFENDANT THE ATTORNEY GENERAL...2ND DEFENDANT RULING 1. This ruling and order on directions relates to the question touching on whether the 1st defendant ought to be granted leave of the court to amend its statement of defence. 2. A brief background of the matter as seen from the record is that the plaintiff lodged a suit against the defendants herein by way of the plaint dated 24th November, 2015 and sought for various reliefs including general damages arising out of a claim for malicious prosecution. 3. The claim is defended, with the defendants putting in their statements of defence separately to challenge the allegations made in the plaint. 4. The matter proceeded for hearing on 5 th March, 2020 with the plaintiff giving his oral testimony. However, at the point of crossexamination, Miss Mburu advocate for the 1st defendant made an oral application for leave to amend the statement of defence. 5. The application for amendment was opposed by Miss Mwangi counsel for the plaintiff who argued that any amendment thereof would prejudice her client, who had already given his evidence-in-chief. 6. The law on amendments is well settled. Under the provisions of Section 100 of the Civil Procedure Act, this court has general power to amend pleadings to correct any defect or error in a suit at any stage of the proceedings on terms as to costs or otherwise as it may deem just and all amendments should be made for the purpose of determining the real question or issues arising between the parties in the proceedings. The above provision is echoed by Order 8, Rules 3 and 5 of the Civil Procedure Rules, 2010 (“the Rules”). 7. Moreover, Order 8, Rule 3 (1) of the Rules grants the court power to allow an amendment of pleadings at any stage of the proceedings as and when it deems fit whereas Order 8, Rule 3 (5) prescribes thus: “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.” 8. It is clear from the foregoing that the courts have wide and unfettered discretion to allow the amendment of pleadings at any stage of the proceedings before judgment is entered. 9. In the present instance, upon my perusal of the record and proceedings, it is apparent that the 1 st defendant has not elaborated on the particulars of amendments to be made or availed a draft amended statement of defence in that respect. The application for amendment which was brought by counsel for the 1st defendant is vague to say the least.

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