1.The locus classicus on amendment of pleadings is the decision in Eastern Bakery v. Castellino (1958) EA 461 where the Court of Appeal for Eastern Africa held that –
2.In regular civil suits, amendment of pleadings is provided for under Order 8 Rule 3 of the Civil Procedure Rules provides as follows:
3.In constitutional litigation, Rule 18 of the Mutunga Rules gives unfettered discretion in plain words as follows:
5.The issue for determination is consequently, whether the proposed amendment here in is one that may be made without prejudice to the other side, which cannot be remedied by an award of costs.
6.An amendment which makes it impossible for the other party to properly to defend himself would also create a prejudice incapable of compensation by an award of costs because it takes away the party’s ability to seek and obtain a fair hearing.
7.Similarly, amendments which occasion prejudice to the other parties would be such as those that introduce a cause of action already adjudicated by, or pending before, other courts or tribunal which would offend public judicial policy on multiplicity of suits and avoidance of likely conflicting determinations by different courts and tribunals of competent jurisdiction; increase costs and cause delay in consequent applications for striking out on grounds of res judicata or stay for sub judice.
8.However, amendments which only cause a delay in the hearing and determination of the dispute, necessary for the other party(ies) to plead to the new materials, are clearly remediable in full by an award of costs.
9.The amendment cannot be opposed on the grounds of lack of merit of the cause of action, the proposition or the contention sought to be underpinned by the amendment. It is generally accepted that an arguable case which is the foundation of all judicial causes of action does not mean a case that must eventually succeed upon hearing and determination. The Court does not, therefore, at the stage of leave to amend look into the merits of the case of the applicant or arguments in support thereof.
10.However, the court must reject at the hearing any amendment or argument based on the matters which were the subject of the determination by the Tribunal in Meru Political Parties Tribunal Dispute No E001 of 2023 as such amendment would be to raise a foundation for an appeal from the Tribunal’s determination without filing a competent appeal, and may well be res judicata by virtue of any such decision of the tribunal.
11.Having seen the decision of the tribunal, this court takes the view that none of the matters raised before the Tribunal are res judicata as the tribunal struck out the Petition before it on the grounds of lack of jurisdiction without delving into the merits.
12.Accordingly, for the reasons set out above, the Court allows the application dated July 5, 2023 as follows:1.Leave to amend the Petition is granted to amend as proposed in the draft Amened Petition attached to the affidavit of Abubakar Abdi Godana sworn on July 5, 2023.2.The Amended Petition shall be filed within seven (7) days from the date hereof.3.The Respondents shall in accordance with the law under Rule 15 of Legal Notice No 117 The Constitution}} Of Kenya (protection Of Rights And Fundamental Freedoms) Practice And Procedure Rules, 2013 within fourteen 14 days of service of the Amended Petition amend their Responses to the Amended Petition.4.Costs in the Cause.
13.The Petition shall be mentioned on September 20, 2023 for directions as to hearing.