Issue Number 1:Whether the Plaintiffs’/Applicants’ Application for Amendment is merited.
38.Before venturing to address and/or deal with the issue herein, it is appropriate and/or imperative to state that amendment of pleadings is at the discretion of the court, even though the court is called upon to exercise such discretion judiciously, taking into account a number of issues; inter-alia, the nature of the proposed amendments, the length of delay prior to the filing of the Application, the antecedent conduct of the party as well as the likely prejudice, if any, to be suffered by the adverse party.
39.On the other hand, it is also important to recall that an Application for amendment made prior to and/or before the commencement of the substantive hearing ought as a matter of general practice, to be freely allowed, unless such an Application is likely to occasion grave Injustice to the adverse Party.
40.Premised on the foregoing General Principles, it is now appropriate to consider the subject Application by the Plaintiffs’/Applicants’, which essentially seek to introduce a claim for Special Damages, which was hitherto not part of the pleadings before the court.
41.Whereas the Plaintiffs have contended that the introduction of the Special Damages claim, shall not generate a new and distinct cause of action, what is apparent is that the said claim was neither part of the original Plaint nor the amended Plaint, both of which had previously been filed by the Plaintiffs herein.
42.To my mind, the introduction of the special damages claim, which was not obtaining in the previous pleadings ipso facto, introduces a separate and distinct claim, which the Defendants herein shall be called upon to respond to and or defend.
43.On the other hand, it is also apparent that the introduction of the Special Damages claim, shall also alter and/or change the nature and cause of action, which the Plaintiffs herein, shall wish to ventilate before the court.
44.Further, it is also important to point out that the suit contract which anchors the subject claim was entered into on the 7th January 2008 and in this regard, the intended amendment, with a view to implead Special Damages claim, is likely to defeat a legitimate and accrued Right premised on the Law of Limitation and essentially, the provisions of Section 4(1) of the Limitations of Actions Act, Chapter 22, Laws of Kenya.
45.Notwithstanding the foregoing, it is also sufficient to note that the issue of the value pertaining to the suit properties was well within the knowledge of the Plaintiffs and their previous counsel and hence, with the exercise due diligence, the preparation of the intended valuation report, ought to have been dealt with and/or acted upon prior to the commencement of the suit and/or immediately upon the filing of the suit.
46.Be that as it may, even though the issue of valuation over and in respect of the suit property, colored the original Plaint and was thus within the knowledge of the Plaintiffs, the Plaintiffs herein have not proffered any reason and/or explanation as to why the valuation was never done at the onset.
47.Notwithstanding the foregoing, the Plaintiffs’ have also not supplied and/or availed any explanation as to why it took same a total of six (6) years, after the filing of the suit, before waking up to conceive the importance of a Valuation report in respect of the subject claim.
48.Surely, a claimant seeking leave to amend, like the Plaintiffs beforehand must appreciate that whenever same requires an exercise of discretion of the court, then it behooves same to supply the court with all the relevant information and or explanation necessary to invoke the exercise of Equitable Discretion.
49.At any rate, where there is some delay, irrespective of the length of delay, it is imperative that the claimant do place before the court explanation as to why the impugned act was not taken in the first place and besides, why the act was not taken timeously and with due promptitude.
50.To my mind, the subject Application seeking leave to Further Amend the Plaint by the Plaintiffs, has been filed with undue and with inordinate delay. Consequently and in the premises, the subject Application is defeated by the Doctrine of latches.
51.The other perspective, which is also essential to address is the likely consequence of the amendments. Suffice it to point out, that the intended amendment is destined to enable the Plaintiffs to bring forth further documents and evidence, whose import and tenor shall expand the latitude of the Plaintiffs claim.
52.In my considered and respectful view, the intended amendment, shall no doubt occasion and/or inflict undue prejudice and grave injustice upon the Defendants/Respondents.
54.Other than the foregoing decision, the circumstances under which the subject amendment can be allowed and/or otherwise, was also considered by the court of appeal in the case of Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited  eKLR, where the court of appeal stated as hereunder;
55.Recently, the Court of Appeal revisited the issue of amendments sought for after the close of the hearing by one side vide the case of Catherine Koriko & 3 others versus Evaline Rosa  eKLR, where the Court of Appeal underscored the position as hereunder;
56.Premised on the foregoing case law and taking into account the likely consequence of the intended amendment, I come to the conclusion that the effects thereof shall indeed occasion undue prejudice and grave Injustice upon the Defendants/Respondents.
57.In a nutshell, it is my considered finding and holding that the Application for amendment beforehand, is not meritorious.
Issue Number 2 & 3Whether the Plaintiffs’/Applicants’ case ought to be re-opened, either in the manner sought or at all.Whether the subject Application has been mounted with undue and/or inordinate delay.
58.Other than the limb of the Application seeking to re-amend the Plaint, the Plaintiffs’ have also sought the liberty to re-open the Plaintiffs case, with a view to adducing further evidence.
59.For the avoidance of doubt, the intended further evidence that the Plaintiffs are keen to adduce, is that evidence that had not been placed before the court either at the onset or during the hearing of the Plaintiffs’ case.
60.Besides, it is also appropriate to state that the intended new evidence, is evidence that the Plaintiffs did not have at the onset, but are now keen to source for, procure and bring forth, subject to the re-opening of the case. For clarity, it is evidence, which the Plaintiffs hitherto did not intend to produce and/or relie on from the inception of the case
61.Be that as it may, the question that begs the answer is; why the intended evidence was never made available to the court at the onset or by the time the Plaintiffs’ tendered their evidence and closed their case.
62.Nevertheless, despite the need and or necessity to explain the reason why the evidence was not forthcoming at the onset, the Plaintiffs have remained mute and have proffered no explanation, whatsoever. In this regard, one is left to wonder as to the reasons that led to the failure and/ or neglect to bring forth the intended evidence at the onset.
63.Suffice it to note that the failure to bring forth the evidence that now informs the intention and/or desire to re-open the Plaintiffs case, could be the result of want of diligence or deliberate inaction, which would not attract and/or accrue exercised of Equitable Discretion.
64.On the other hand, the other issue that does arise is whether the intended evidence is calculated to plug and/or fill the gaps that were evident in the Plaintiffs case, arising from and/ or discernable after the cross examination.
65.To my mind, the Intended evidence, (both oral and documentary) are certainly geared towards propping the Plaintiffs’ case, upon the realization that indeed the Plaintiffs case was adversely exposed ex-post cross examination.
66.In short, I am of the considered view that an Application for re-opening of the case cannot be granted where the purpose thereof is to fill and or plug the gaps in the evidence of the claimant/Applicant. Clearly, the intended re-opening of the Plaintiffs’ case herein, has no other purpose save for filling -in the gaps, which this court cannot sanction and/ or sanitize.
68.Other than the fact that the court cannot facilitate re-opening of a Party’s case with a view to filling gaps, there is also the need to underscore that whenever a Party seeks to make an Application like the one beforehand, same must be filed and/or made without inordinate delay.
69.As pertains to the subject matter, it is common ground that the Plaintiffs’ case was heard and closed on the July 20, 2020 and yet the subject Application was only made on the April 6, 2022.
70.Consequently, what becomes apparent and/or evident is that the Plaintiffs herein were content with their closure of their case for a whole two years before arriving at a contrary position and thus the filing of the subject application. To my mind, the Plaintiffs herein have not approached the court with due promptitude.
71.Given the lapse and passage of time from when the Plaintiffs case was heard and closed up to and including the time when the subject Application was filed, there is no gainsaying that there was inordinate delay on the part of the Plaintiffs prior to mounting and/or filling the subject application.
72.Owing to the foregoing, one would have expected the Plaintiffs to endeavor and/or explain the reasons why the subject Application was never made timeously and without undue delay.
73.Nevertheless, the Plaintiffs herein did not find it fit and/or expedient to avail and/or supply such information. Consequently, the court was left in the dark in discerning whether the lapse and/ or neglect herein, was intentional or otherwise informed by deliberate inaction..
74.Either way, it behooved the Plaintiffs/Applicants to avail and supply material before the court to warrant a finding that their failure to avail the evidence that is now sought to be relied upon, was neither as a result of negligence, intentional inaction nor otherwise.
75.Having not made any such efforts and taking into account the impugned duration prior to the mounting of the subject application, what becomes apparent is that there was truly an inordinate delay on the part of the Plaintiffs/Applicant, which delay, has not been accounted for.
76.In the premises, it is appropriate to find and hold that the extent of delay prior to the filing of the subject Application gives rise and culminates to the Application of the Doctrine of latches.
77.To buttress the application and relevance of the Doctrine of latches, it suffices to restate the observation of the court vide the case of Joshua Ngatu versus Jane Mpinda & 3 others  eKLR, where the Court stated as hereunder;
78.On the other hand, it is incumbent upon litigants, in this case, the Plaintiffs/Applicants to ensure that every action and/or application before the court is taken and/or made in a timely manner and not otherwise.
79.Suffice it to point out, that the requirement to act and/or approach the court on a timely manner, without undue delay, has since crystalized and attained a Constitutional backing vide Article 159 2(b) of the Constitution 2010.
80.On the other hand, the significance of taking the requisite action timeously and with due promptitude, has since received judicial pronouncement in various court decisions. Consequently, due diligence is therefore significant, essential and critical in the discharge and performance of any action in the course of the Due Process of the law.
82.In the premises, it is my finding and holding that the Application is similarly negated by the Doctrine of latches, based on the inordinate lapse of time, indolence and slovenliness on the part of the Plaintiffs/Applicants.