1.By a Notice of Motion dated August 31, 2022 the Applicant filed an application seeking leave to amend the Plaint as well as leave to substitute the plaintiff’s Witness Statements and List and Bundle of Documents. The application is premised on the grounds that the Plaintiff needs to bring out all the issues in controversy.
2.The Defendant has opposed the application through the Grounds of Opposition dated June 8, 2023 in which he states that through the proposed amendments, the Plaintiff seeks to introduce a new cause of action and bring a claim of fraud. He also contends that the amendment if allowed would deprive the Defendant of the defence of limitation as the Plaintiff does not disclose when the alleged acts of fraud were discovered. He also complains that the Plaintiff has not annexed the witness statement that he wishes to substitute nor the Bundle of Documents he wishes to introduce.
3.The application was argued orally although the plaintiff also filed his written submissions.
4.In his submissions learned counsel for the plaintiff submitted that the plaintiff intends to bring on board all the necessary parties and bring out all the issues in controversy. He relied on the case of Eunice Chepkorir v Bomet Water Company Limited (2017) eKLR.
5.On the other hand learned counsel for the Defendant submitted that the draft amended Plaint brings in 4 new parties yet the application has no prayer for leave to join new parties to the suit. He further contended that in the Defence the Defendant had raised the issue of limitation as the suit was filed 21 years after the cause of action arose and the nature of amendments proposed are intended to defeat this defence. He added that the proposed amendments seek to introduce fraud which is a new cause of action without disclosing when the alleged fraud arose. He pointed out that the proposed substituted Witness Statement had not been annexed to the application.
6.Having considered the application, the Grounds of Opposition and rival submissions the only issue for determination is whether the application should be allowed.Order 8 Rule 3 (1) of the Civil Procedure Rules provides that:Order 8 Rule 3 (5) provides thatOrder 1 rule 10 (2) provides that:
8.Whether or not the plaintiff is entitled to leave to amend his plaint in accordance with the rules is a discretion to be exercised by the court judicially and within the principles of natural justice. In the case of Reg V Gaming Board ex Benaline 1970 2 QB 17 Lord Denning observed as follows:
10.What can be gleaned from the above decisions is that the court has a wide discretion to amend pleadings at any stage of the proceedings so to bring out the real issues in controversy between the parties and on such terms as to costs as may be just. The principles of law with regard to amendment of pleadings, are underpinned by the sacred and sacrosanct principles of fairness, equity, equality, reasonableness, lawfulness, good conscience and morality.
11.In the present case the application for leave to amend the Plaint has been made before the matter is confirmed for hearing. Even though the defendant claims that the plaintiff intends to bring in new parties without a prayer for leave to join new parties, nothing stops the court from adding new parties to a suit even on its own motion. In my view any prejudice that may be suffered by the defendants can be compensated by costs.
12.Having carefully considered the application, affidavits and submissions of both counsel, I find merit in the application and I grant it and make the following orders: