Fiaz Mohamed Abdul Razak & 1 other v Dr.dhadhlalla

pleadings in this matter closed 14 days after he served his defence on the Applicants. That the applicants` suit is based on a cause of action that is now time barred and the limitation of time has expired. It was averred that pre-trial directions were taken in the matter and parties consented for the matter to be listed for hearing. That the matter proceeded for hearing on the 19th October 2023 when the 1st Applicant was heard and another date taken to hear the evidence of the 2nd Plaintiff. The applicants then filed the instant application. 4. The respondent states that the applicants have had 9 years since 2015 to amend their pleadings, hence there has been inordinate delay in bringing the application. 5. It was deposed that it became apparent in the cross-examination of the 1st Applicant that he had failed to plead various issues as well as failed to file documents to support their claim. That the instant application is an attempt by the respondent to belatedly plead the issues they seek to introduce by amendments and remedy the issues, thereby denying the Respondent his defence and delaying further hearing of the matter. That the amendment is being used as a guise to cure the deficiencies in the applicant’s case and evidence as came out during cross-examination of the 1st Applicant. That the application is prejudicial to the respondent and is an abuse of the court process in that it will give the applicants an opportunity to bring additional evidence which was never filed before and not produced when the 1st Applicant was testifying. 6. The respondent averred that the application is brought in bad faith and that it is in the interest of substantive and procedural justice that the same be dismissed. That allowing the application will prolong the proceedings and deny the Respondent timely resolution of the matter which has been pending in court for almost a decade now. 7. It was further averred that the applicants will not be prejudiced since they already sought for special damages in the plaint dated 13th July 2015 of which they can rely on to prosecute their case. That the application has failed to meet the required threshold for granting leave to amend pleadings and should therefore be dismissed. 8. In reply to the Respondent`s replying affidavit, the applicants state in a replying affidavit sworn on the 28th November 2024 that the court has unfetted discretion to allow amendments to pleadings. That the allegation that the claim is time barred is unfounded as the actual claim was filed on time and special damages were sought. That the intended amendments align with the initial claim and that the difference is that the special damages have been particularised and as such the amendment does not alter or substitute the original cause of action. That no new claim is being introduced and therefore there will be no prejudice on the Respondent as the Plaintiffs` case has not been closed. That the respondent can’t suffer any form of damage that cannot be compensated by the way of costs. 9. It was averred that the application is made in good faith. That the applicant’s additional list of documents including school fees and madrasa fees statements are crucial in ensuring the administration of justice by aiding the court to quantify the damages sought to be awarded. That the respondent is seeking for dismissal of the application in the interest of procedural justice but the court should be guided by the constitutional principles under Article 159 of the Constitution of Kenya and accordingly administer justice without undue regard to procedural technicalities. Submissions 10. The applicants through their advocates submitted that this court has unfettered power under section 100 of the Civil Procedure Act and Order 8 Rule 3(1) and Rule 5-*(1) to allow amendments to pleadings to correct any defect or error in a suit at any stage of the proceedings on such terms as to costs as the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/500/eng@2026-01-20 2

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court may deem just. Further that the amendments should be made for the purpose of determining the real question or controversy between the parties. 11. It was submitted that the errors that the applicants wish to correct were noted after the advocates on record took over the matter from the applicant’s previous advocates. Therefore, that the delay in seeking to amend the pleadings was not of the applicants` fault. That failure to plead for all special damages will be extremely prejudicial to the applicant’s case as they will be denied an opportunity to recover special damages occasioned by the Defendant’s negligence. 12. It was submitted that the applicants` additional list of documents include receipts and notes from the Respondent and school and Madrassa fees which are imperative in aiding the court to reach a just and fair determination of the dispute. In this respect the applicants made reliance on the case of Institute for Social Accountability & Another v Parliament of Kenya & 3 others (2014) eKLR where the court stated that: The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. The power of amendment makes the function of the court more effective in determining the substantive merits of the case rather than holding it captive to form of the action or proceedings. 13. The applicant also cited the holding by the court of Appeal in the case of Coffee Board of Kenya v Thika Coffee Mills Limited & 2 others (2014) KECA 409 (KLR) where the court considered the principles stated in the Mulla, the code of Civil Procedure, 18th Ed, Vol. 2 of pages 1751-1752 and adopted the same as follows: “ On the basis of the different judgments, it is settled that the following principles should be kept in mind in dealing with the applications for amendment of the pleadingsi. All amendments should be allowed which are necessary for determination of the real controversies in the suit; ii. The proposed amendment should not alter and be a substitute of the cause of action on the basis of which the original list was raised; iii. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts would not be allowed to be incorporated by means of amendment; iv. Proposed amendment should not cause prejudice to the other side which cannot be compensated by means of costs; v. Amendment of a claim or relief barred by time should not be allowed; vi. No amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time; vii. No party should suffer on account of the technicalities of law and the amendment should be allowed to minimize the litigation between the parties; vii. The delay in filing the petitions for amendment of the pleadings should be properly compensated by costs; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/500/eng@2026-01-20 3

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ix. Error or mistake, which is not fraudulent, should not be made the ground for rejecting the application for amendment of pleadings.” 14. The Applicants submitted that their amended plaint is in line with the guidelines set by the Court of Appeal in the aforementioned case. 15. It was submitted that the Applicants have suffered damages as a result of negligence by the Respondent and therefore that the court should not deny them the opportunity to recover the sums they used as a result of negligence by the Respondent. It was submitted that the Respondent does not stand to suffer any prejudice or damage that cannot be compensated by way of costs. That his legal right to crossexamine the 1st Applicant will not be infringed since no new claim is being introduced and the witness can be recalled or that the matter can start de novo. 16. The Applicants submitted that mere delay is not sufficient ground for denial of leave to amend pleadings and in this respect cited the decision in Central Bank Limited v Trust Bank (2010) 2EA 365 as cited in Andrew Ouko v Kenya Commercial Bank Limited & 3 others (2014) eKLR where it was held that: “ The overriding consideration in applications for leave is whether the amendments are necessary for the just determination of the controversy between the parties. Likewise mere delay is not a ground for declining to grant leave. It must be such delay as is likely to prejudice the opposite side beyond monetary compensation in costs. The policy of the law is that amendments to pleadings are to be freely allowed unless allowing them the opposite side would be prejudiced or suffer injustice which cannot be properly compensated by costs.” 17. The applicants submitted that the application was made in good faith. That the error they plead to be rectified was made by their previous advocates and mistakes of counsel should not be revisited upon an innocent litigant. They urged the court to allow the application. Respondent’s submissions 18. 19. The respondent through his advocates submitted on 3 issues; 1. Whether the application is an abuse of the court process; 2. Whether the Respondent will be prejudiced by the intended amendments; and 3. Whether the court ought to allow the amendments. On the first issue the Respondent submitted that the new facts that the applicants seek to introduce through amendment are aimed at altering the cause of action in this matter and is an attempt to deny the defendant his defence and therefore amount to abuse of court process. Reliance was placed in the case of Central Kenya Limited v Trust Bank Limited & 5 others (2000) eKLR where the court of Appeal discussed the principles for amendment of pleadings and stated as follows: The settled rule with regard to amendment of pleadings has been concisely stated in Vol.2, 6th Ed. at P.2245, of the AIR Commentaries on the Indian Civil Procedure Code by Chittaley and Rao, in which the learned authors state: that a party is allowed to make such amendments as maybe necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/500/eng@2026-01-20 4

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action is introduced, that no vested interest or accrued legal right is affected and that the amendment can be allowed without injustice to the other side. 20. It was submitted that it became clear during cross-examination of the 1st plaintiff/Applicant that the plaintiffs failed to prove various facts and file court documents to support their case. In the premises, that the instant application is only a guise to cure the deficiencies expressed during cross-examination of the 1st applicant and did not arise out of the new advocates identifying unpleaded issues and claims. Therefore, that the application is made in bad faith with the sole purpose of undermining the Defendant’s defence and is an abuse of the court process. 21. It was submitted that the application has been made after undue delay as the cause of action is now time barred. The Respondent referred to Section 4 of the Limitation of Actions Act and submitted that the claim for special damages on account of alleged negligence is an equitable relief that cannot be brought more than 6 years from July 2013, hence the claim is statute barred and should be dismissed. Further reliance was placed in the case of James Ochieng Oduol T/A Ochieng Oduol & Co. Advocates v Richard Kuloba (2008) eKLR where the court held that where an amendment of pleading would result in the defeat of a defence of limitation of time would generally not be allowed except in very peculiar circumstances. No such peculiar circumstances exist in this case. 22. It was submitted that the application was brought after unreasonable delay due to indolence on the part of the applicants. The respondent relied on the case of Mbuthi v Karanja (Civil Application E347 of 2023) KECA 1261(KLR) where the court emphasised that amendments should be brought within reasonable time and stated that: “ It is trite also that applications seeking amendments of pleadings ought to be brought within a reasonable time. In Kyalo v Bayusuf Brothers Ltd Civil Appeal No. 38 of 1983, it was held that applications for amendment of pleadings should only be allowed if they are brought within a reasonable time because to allow a late amendment would amount to an abuse of the court process. Halsbury’s Laws of England, 4th Ed. Vol. 36(1) at paragraph 76, is applicable as it provides inter alia:“…The purpose of the amendment is to facilitate the determination of the real question in controversy between the parties to 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…” 23. On the second issue of prejudice, the Respondent submitted that the intended amendment will occasion him an injustice. That it is trite law that amendments would not be allowed where prejudice would be occasioned to the other party. Reliance was in this regard placed in the case of Andrew Wabuyele Biketi v Chinese Centre for Promotion of Investment Development & Trade in Kenya Limited, Warleen Traders (K) Limited & George Kimani T/A George or Kimani& Advocates (Civil Case No.147 of 2012(2015) KEHC 8118(KLR) where it was stated that; However, if the application be made mala fide, or if the proposed amendment will cause undue delay, or will in any way unfairly prejudice the other party, or is irrelevant or useless, or would raise merely a technical point, leave to amend will be refused. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/500/eng@2026-01-20 5

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24. The respondent submitted that his right to have the trial begin and conclude without unreasonable delay and the rights to cross-examine and challenge evidence will be violated if the application is allowed. That he will be was held prejudiced because the character of the suit and defence that special damages sought have not been substantiated will be taken away which right cannot be remedied by an award of costs. 25. It was submitted that the applicants will not be prejudiced and will not face any injustice if the application is disallowed because they have already claimed special damages in the plaint dated 13th July 2015 and the intended amendments are irrelevant to the determination of the real issues in dispute and the prevention of multiplicity suits. 26. On whether the application should be allowed, the Respondent submitted that though leave to amend pleadings may be granted at any stage of pleadings, it is fettered by judicial discretion as was held in the case of Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited 2013eKLR where the court stated that: The learned judge in rejecting the application for amendment was no doubt exercising a judicial discretion which must be exercised rationally. 27. Further reliance was placed in the case of Kassam v Bank of Baroda (Kenya) Ltd (2003) eKLR where Justice Kuloba (as he then was) outlined the parameters of exercise of judicial discretion as follows; Normally the court should be liberal in granting leave to amend a pleading. But it must never grant leave for amendment if the court is of the opinion that the amendment would cause injustice or irreparable loss to the other side or if it is a device to abuse the process of the court. The power to allow amendments is intended to do justice; for, all amendments ought to be allowed which (a) do not work injustice to the other side, and (b) are necessary for the purpose of determining the real question in controversy between the parties; and all the authorities lay down precisely the same doctrine, that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. The court must aim at seeing that a multiplicity of suits is avoided, the real matters in controversy between the parties are clearly brought out, the other party is not prejudiced, the character of the suit or defence is not altered, and the object of the amendment is not to abuse the process of the court or unnecessarily delay justice or work a clear injustice. 28. It was submitted that the applicants are not seeking to assist the court in determining the real question in controversy between the parties or correcting defect or error in the proceedings but rather seeking to introduce new causes of action which will alter the character of the suit and defence. Neither is the amendment necessary to prevent multiplicity of suits because the facts remain the same and it is only the relief sought that are amended. That the amendments would work clear injustice against the respondent since the special damages sought will increase the total special damages sought yet the Respondent will not have the opportunity to cross-examine the Applicant on the new issues raised by the amendments. 29. The respondent urged the court to dismiss the application with costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/500/eng@2026-01-20 6

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Analysis and determination 30. I have considered the application, the grounds in support thereof, the grounds in opposition thereto and the submissions by the respective counsels for the parties. 31. The Applicants seek to amend their plaint in accordance with the draft amended plaint to include special damages of Ksh.4,302,250/= made up as follows: fees paid for pre-school for the two children amounting to Ksh.2,884,400/=; medical expenses spent from the time of custody of the children to date to the sum of Ksh.1,000,000/= ; madrasa fees from 2017 to 2024 totalling to Ksh.225,850/= and tuition fees for Grade 4 and 5 totalling to Ksh.192,000/=. 32. There is no doubt that that this court has unfettered discretion to allow amendment of pleadings in accordance with section 100 of the Civil Procedure Act that provides that: 100. General power to amend The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding. 33. Order 8 Rule 5(1) of the Civil Procedure Rules provides that: “ 5. (1) 34. For the purpose of determining the real question in controversy between the parties, or of correcting any defect or 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. The principles for amendments of pleadings arising from the aforementioned provisions have been well articulated in the submissions of the parties set out above. These principles were summarized by the Court of Appeal while quoting from Bullen and Leake & Jacob's Precedents of Pleading - 12th Edition, in the case of Joseph Ochieng & 2 others vs. First National Bank of Chicago, Civil Appeal No. 149 of 1991 as follows:“ The ratio that emerges out of what was quoted from the said book is that powers of the court to allow amendment is to determine the true, substantive merits of the case; amendments should be timeously applied for; 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; 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.” 35. The issues for determination in the application are: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/500/eng@2026-01-20 7

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36. (1) Whether the application is made in good faith or is an abuse of the court process; (2) Whether the amendment being sought introduces new case; and (3) Whether the amendment will prejudice the Respondent. I will therefore proceed to consider the three issues. Whether application is made in good faith 37. The law is that however late amendment of pleadings is made, they should be allowed as long as they are made in good faith, that any delay is properly explained and costs can be ordered to compensate the other party. In Kassam v Bank of Baroda (supra), the court held that: “ The authorities also show, that when it is said that amendment may be allowed however late the proposed amendment may be, it does not mean that a party or his advocate may unnecessarily delay an amendment. It is of the first importance that an amendment should be applied for immediately it is seen that an amendment is necessary. A late amendment may be done, but the applicant must show why the application is made late and must satisfy the court that the delay is not deliberate. Late applications for amendment are liable to be rejected, if there has been unexplained delay in making the application. Any delay in applying for amendment is a material factor to be considered by the court before exercise of its discretion”. 38. The applicants in the instant application plead that the application is made in good faith in that it is only after their advocates on record took over the case from the previous advocates that the advocates on record realised that there were some pertinent issues that were not pleaded in the plaint dated 13th July 2015. They argue that the mistake is not of their own making but that of their previous counsel and that being so mistake of counsel should not be visited on them. 39. The Respondent on the other hand argues that the amendment was triggered by the cross-examination of the 1st Applicant in court when it came out that the Applicants had failed to file some documents in support of their claim. That the amendment being sought is a ploy to deny the Respondent his defence and to cure the deficiencies identified during cross-examination of the 1st Applicant. That the application is made in bad faith and is an abuse of the process of the court. Further that the amendment is being made after a long delay and that the claim being sought is time barred. 40. Indeed the 1st Applicant testified in the case on 19th October 2023 and was cross-examined by counsel for the Respondent. The witness in his evidence made a claim for school and medical expenses incurred in bringing up the children which claim was not captured in the plaint dated 13th July 2015. It is after the hearing was adjourned for them to call their next witness that they came up with the application to amend the plaint. 41. The application to amend the plaint is being made 9 years after the filing of the original plaint in the year 2015. This is by any standards inordinate delay. The explanation the Applicants have given for the delay is that the failure to plead the full claim in the plaint was not realised until when the case was taken over by their current advocates on record. 42. It is clear to me that the reason why the Applicants removed the case from their previous advocates is that they realised during the testimony of the 1st Applicant in court that their then advocates had not included the claim for past and future educational and medical expenses in the claim. In my view, it is https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/500/eng@2026-01-20 8

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the previous advocates for the Applicants who are to blame for that blunder and lack of diligence and not the Applicants. In those circumstances, mistake of counsel should not be visited on the Applicants. 43. The law is that mere delay is not a ground for refusing a grant of leave especially where the respondent can be compensated in costs for the delay, see Rubina Ahmed case v Guardian Bank (supra). Consequently, I find the application is made in good faith and not aimed at abusing the process of the court. The application ought to be allowed unless the Respondent would be prejudiced or suffer injustice which cannot properly be compensated for in costs. 44. Counsel for the Respondent argues that the claim for past and future expenses as proposed in the draft plaint is time barred in that it is a claim for equitable relief based on negligence which under Section 4 of the Limitation of Actions Act cannot be brought more than six years from 26th July 2013. 45. The claim for negligence against the Respondent was filed in 2015. It included a claim for special damages of Ksh.1,188,790/= being a claim for money paid to the Respondent towards the IVF procedure the Respondent conducted on the 1st Applicant`s wife. The Applicants in their draft plaint seem to have dropped that claim and instead seek to claim past educational and medical expenses totalling to Ksh.4,302,250/= so far incurred in raising up the children. They also seek to claim future expenses expected to be incurred in raising up the children. 46. In my view, the claim for past and future expenses fiows directly from the alleged negligence of the Respondent. Negligence was pleaded in the plaint dated 13th July 2015 together with a claim for special damages. I therefore find that the proposed claim is not time barred. Whether the proposed amendment introduces new case 47. The whole objective of amendment of pleadings as stated by Section 100 of the Civil Procedure Act and Order 8 Rule 5(1) of the Civil Procedure Rules is to ensure the determination of the real question in controversy between the parties and in addition to correcting any defect or error in any proceedings. By doing so the court must aim at seeing that a multiplicity of suits is avoided so that suits which can conveniently be heard together can be so tried, see Kassam v Bank of Baroda (supra). 48. The Court of Appeal in Joseph Ochieng & 2 others v First National Bank of Chicago (supra) held that amendment of pleadings can be allowed even where the proposed amendment introduces a new case or new ground of defence 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. In the instant case, the question in controversy between the parties is whether the Applicants should be awarded damages, general and special, against the Respondent. In my view, the proposed claim for special damages can conveniently be tried together with the claim for general damages as claimed by the Applicants in the original plaint. The proposed claim therefore does not change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action. I therefore find that the proposed amendment does not introduce a new case. Whether the proposed amendment will prejudice the Respondent 49. The law is that amendment of pleadings should be freely allowed unless allowing them would cause the opposite party to be prejudiced or suffer injustice which cannot be compensated by award of costs, see Central Bank of Kenya Limited v Trust Bank Limited (supra). 50. Counsel for the Respondent argued that the Respondent will be greatly prejudiced if the application is allowed in that his right to have the trial begin and conclude without unreasonable delay will be contravened. That allowing the intended amendments would deny the Respondent the opportunity https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/500/eng@2026-01-20 9

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to cross-examine 1st Respondent on the merits of the amendments considering that he has closed his case. That the special damages sought for past and future educational and medical expenses against the Respondent will tremendously increase the total special damages sought yet the Respondent will not have the opportunity to cross-examine the 1st Respondent on the new issues raised by the amendments as he has already closed his case. 51. The Applicants on the other hand argued that the Respondent does not stand to suffer any form of prejudice or any form of damages that cannot be compensated by way of costs. That his legal right to cross-examine the 1st Respondent will not be infringed since no new claim is being introduced and, in any case, the 1st Applicant can be recalled for cross-examination if need be or the matter can start de novo. 52. I have considered the issue of prejudice. The law allows for a recalling of a witness for further crossexamination and re-examination where an amendment to pleadings is made after a witness has testified. The Defendant is also at liberty to amend his defence where an amendment of the plaint is done. The Defendant can also make an application for the case to start de novo where a witness has testified before a plaint is amended. In view of all the options open to the Respondent in the event that the application is allowed, I find no basis for the argument that the Respondent will suffer injustice if the application is allowed. The Respondent has not shown that he will have a problem in obtaining any potential witnesses in the case or in procuring documentary evidence regarding the case. I am of the view that the Respondent will not suffer any injustice if the application is allowed. He has however to suffer the inconvenience of re-looking at his case once again if the application is allowed in which case he will have to incur further costs. This in my view is an inconvenience the Respondent should be compensated for by way of costs. 53. In view of the foregoing, I am persuaded that the application herein is merited so as to enable the court to determine the real issues in controversy between the parties. The application is thereby allowed in the following terms: (1) The Applicants shall file and serve an amended plaint upon the Respondent within 7 days from the date of this ruling. (2) The Respondent shall file and serve an amended defence, if need be, within 14 days from the date of service of the amended plaint. (3) Subsequent pleadings shall be filed within the timelines stipulated in the provisions of the Civil Procedure Rules, 2010. (4) The Applicants shall pay the Respondent costs of Ksh. 30,000/= within thirty days from the date of this ruling failing which the Respondent will be at liberty to apply for further appropriate orders from the court. Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 20TH DAY OF JANUARY 2026 J. N. NJAGI JUDGE In the presence of: Ms Kiende for Plaintiffs/Applicants Mrs Oduor for Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/500/eng@2026-01-20 10

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Court Assistant -N/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/500/eng@2026-01-20 11

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