1.This suit was instituted through a plaint dated January 3, 2018 in which the plaintiff initially sought the following prayers against the 1st to 14th defendants jointly and severally:-
2.The record shows that the plaint was amended on March 2, 2018 to enjoin the 15th to 21st defendants and the two interested parties and also to include the following prayers:-
3.Upon amendment of the Plaint and as parties continued to comply with Order 11 of the Civil Procedure Rules the Plaintiff entered into negotiations with the 1st to 5th Defendants for an out of court settlement. These out of court negotiations were brought to the attention of the court on January 20, 2020 by Senior Counsel Mr Gatonye, Learned Counsel for the 1st to 5th Defendants. Counsel appearing for the other defendants intimated they were aware of those negotiations whereupon the hearing of the case was adjourned to give way to the negotiations. However, those negotiations broke down a fact which was revealed to this court on December 8, 2021 the same day on which the Plaintiff revealed that it was reviewing its case against some of the other Defendants.
4.On April 4, 2022 the Plaintiff intimated that it had reached a consent with the 6th, 8th, 9th, 10th, 11th, 12th, 13th, 15th, 16th, 17th and 21st Defendants to discontinue the case against them and they were praying that the consent be adopted as an order of this court. Once that position was confirmed by Counsel for the said Defendants this court adopted the consent and marked the case against those defendants as withdrawn with no orders as to costs. It was then that Counsel for the Plaintiff sought leave, which was granted, to file an application to amend the plaint so as to reflect the new position. That application is the one that forms the subject of this ruling.
5.The application is brought under Order 8 Rules 3(1), 5 & 7, Order 25 (1) & (2), Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The gravamen of the application is to further amend the Plaint so as to remove the names of the 6th, 8th, 9th, 10th, 11th, 12th, 13th, 15th, 16th, 17th and 21st Defendants from the proceedings as the investigations by the Plaintiff have revealed that they acted in the performance of their official duties; that the amendment is necessary for the effectual adjudication of the questions involved in the suit and further that the said defendants will not suffer any prejudice if the application is allowed.
6.On June 21, 2022 this court directed that the application would be heard through written submissions. Only Counsel for the 7th, 14th and 19th Defendants have opposed the application. Apparently a similar application was also filed by the 19th Defendant. The application of the 19th Defendant is supported by an affidavit sworn by himself on June 14, 2022 although the court’s receipt stamp is dated June 10, 2022. The Notice of Motion that is on the record is not complete so the court cannot tell its date.
7.I have carefully considered the Plaintiff/Applicant’s submissions dated July 29, 2022 and the 7th, 14th and 19th Defendants submissions dated August 25, 2022 all filed in respect of the Plaintiff’s application dated April 28, 2022.
8.Amendment of pleadings is provided for under Order 8 of the Civil Procedure Rules. Since pleadings in this case have closed the relevant provision is Order 8 Rule 3 (1) which provides:-
9.Order 1 Rules 9 and 10 and Order 24 Rules 3, 4, 5, 6 to which amendments are subject to provide:-Order 1
10.It is clear from the above provisions that this court has a wide discretion to grant or not to grant applications for amendment. The general principle however is that amendments are to be freely allowed if they are necessary to enable the real controversy between the parties to be determined and if they will not occasion prejudice to the opposite party – See Kenya Cold Storage Services (Africa) Ltd  KLR 453, Macharia v Guardian Bank Ltd & Another  KLR 271; Mwakio v Kenya Commercial Bank Ltd  KLR 513).
11.Whereas the Plaintiff contends that the amendment should be granted as it is necessary to reflect the true position following discontinuance of the suit against some of the defendants. The 7th, 14th and 19th defendants have opposed the application for reason that it will not only prejudice them but that it offends the national values and principles of governance in the Constitution of Kenya for the following reasons:
12.It is however instructive that the consent which culminated in the discontinuance of the affected defendants has already been adopted as an order of this court. Those defendants are no longer parties to the suit and the amendment is therefore necessary to reflect the reality of that fact. The 7th, 14th and 19th defendants have not demonstrated how they will be prejudiced by the amendment or how the same will result in violation of the principles of governance, equity, social justice, equality, non-discrimination, transparency, integrity and accountability. It is trite that it is never sufficient to allege. There being no proof of such prejudice I am not persuaded that the application is made in bad faith.
13.Moreover Order 25 Rules 1 and 2 of the Civil Procedure Rules empowers the Plaintiff to wholly discontinue its suit against all or any of the defendants. Similar power is granted to the court under Order 1 Rule 10 (2) of the Civil Procedure Rules. Likewise, Section 56(B)(2) of the Anti-Corruption and Economic Crimes Act empowers the Commission to negotiate and enter into a settlement with any person against whom it has brought a civil claim or application in court.
14.Counsel for parties are officers of this court and are always expected to act in utmost good faith. I find nothing to demonstrate that not to be the position in this case. The mala fides alleged by Senior Counsel Erick Mutua has not been demonstrated. The fact that the terms of the consent reached between the Plaintiff and the defendants was not disclosed to Counsel for the 7th, 14th and 19th defendants is not in my view a good reason to reject the application.
15.In the upshot the application to further amend the Plaint is granted. The Amended Plaint shall be filed and served within 21 days of this order. There shall be no order for costs.