1.Before Court is a Notice of Motion application dated 14th March, 2023, brought pursuant to Sections 3A and 100 of the Civil Procedure Act, Order 8 Rules 3 and 5, Order 51 Rule 1 of the Civil Procedure Rules, and Article 159 of the Constitution. The Applicant seeks the following Orders:i.That the Honourable Court be pleased to grant the Applicant leave to amend the petition.ii.That the annexed draft of the amended petition be deemed as dully filed upon payment of the requisite fees.iii.That Costs be in the cause.
2.The Motion is supported by grounds on the face thereof, and the affidavit of Evans Ogutu Ouma, the Petitioner herein. The Applicant avers that since filing of the suit, there have been numerous changes in the circumstances necessitating amendment of the petition.
3.It is the Applicant’s aversion that it is necessary to amend the petition so as to address the real issues in dispute between the parties. He further avers that the petition is tainted with inadvertent defects, erroneous figures and typographical errors, which need to be corrected for clarity purposes.
4.The Applicant states that the application is based on bona fide grounds and that no prejudice will be caused to the Respondents if the same is allowed.
5.The Respondents opposed the application vide a Replying Affidavit sworn by Vincensia Awino Kionge on 18th March, 2023. The Respondents aver that the amendment sought herein, has been preferred late in the day after the Court has heard the petition by way of submissions and when all that remains is a judgment.
6.It is the Respondents’ aversion that Counsel for the Petitioner only came to recuse himself on 18th January, 2023, without telling the Court why he did not comply with Court’s directions.
7.It is their position that the action by the Petitioner’s Advocates was an afterthought having come after the Respondents had filed their submissions.
8.The Applicant further avers that upon change of representation, the incoming advocate is bound to proceed with the suit from where it last stopped, and not apply for amendment after they have had the privilege of assessing the Respondent’s submissions.
9.The Respondents aver that the Applicant seeks to strike out five Respondents who have participated in the suit and were only awaiting a judgment.
10.Parties canvassed the application through written submissions and which have been duly considered.
11.I have considered the application, the grounds and affidavit in support thereof, the Respondents Replying affidavit and the written submissions by both parties. The issue for determination is whether to grant the Applicant leave to amend his petition.
12.Rule 13(6) of the Employment and Labour Relations Court (Procedure) Rules provides for amendment of pleadings as follows:
13.The Court of Appeal spelt out the principles in amendment of pleadings in Joseph Ochieng & 2 others vs. First National Bank of Chicago, Civil Appeal No. 149 of 1991 as follows: -
14.I will thus proceed to analyze the Petitioner’s application against the foregone principles. For starters, although the Applicant’s application was not timeously filed, having come after this Court had given directions on the hearing of the main petition, delay alone is not sufficient ground to decline such an application considering the Court’s discretion to allow amendment at any stage, including at appellate stage.
15.Bramwel LJ in Tildesley v. Harper (1878) 10 Ch. D at pg.296 held thus:
16.General speaking, the Petitioner/Applicant’s application looks like one geared for success. A closer look at the draft amended petition however, depicts a totally new suit compared with the petition already before Court.
17.As correctly submitted by the Respondents, the draft amended petition is made up of several new paragraphs, not to mention that the reliefs sought therein, have changed substantially and look nothing like the petition before this Court.
18.Further looking at the amendments, it is my view, that the issues subject of the amended draft petition as presented, are those that can only be properly and fully tried under a normal claim/cause as opposed to a constitutional petition.
19.I find and hold that the changes to the petition herein through the draft amended petition, have substantially changed the action into one of a different character which could more conveniently be made the subject of a fresh action.
20.For the reasons foregone, the Applicant/Petitioner’s motion fails and is dismissed with no orders on costs.