1.Beforecourt is the Attorney General’s Application acting on behalf of the 1st respondent/applicant dated March 7, 2023, and brought pursuant to article 159 of the Constitution of Kenya 2010, Rules 3 (12, 3 (8), 10 (2) (b) (c) & (g) and 18 & 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and Order 8 Rules 2(1) and 3 of the Civil Procedure Rules, seeking orders That: -i.Spent.ii.This court be pleased to disallow the amendments made in the ‘Petition’/ 'Amended Petition' filed herein and dated 12/02/2023.iii.This court be pleased to strike out the 'Petition' / 'Amended Petition' filed herein and dated 12/02/2023, together with the Affidavit of Evans Morara Nyang'ongo in support of the same, deponed on 12/2/2023.iv.Spent.v.Costs be provided for.
2.The application is supported by grounds on the face thereof and the affidavit of Moimbo Momanyi, the Counsel on record for the Applicant herein.
3.The applicant argues that the petitioners were granted leave to file an Amended Petition, which they filed and served upon the Respondents on 17/2/2023. It is the applicant’s further argument that the amendments made by the petitioners do not comply with the mode of amendment contemplated by the Rules, and are an abuse of this court's process.
4.The applicant further avers that the amendments made by the petitioners altered the substratum and character of the petitioners' claim as filed on 1/2/2022, which is an abuse of this court's processes.
5.The petitioners opposed the motion vide grounds of opposition filed on March 15, 2023, wherein, the Petitioners argue that the motion does not disclose grounds upon which the Amended Petition should be stuck out as required under Order 2 Rule 15 of the Civil Procedure Rules, 2010.
6.It is the Petitioners’ further assertion that prayer 1 of the motion is not tenable since the amendment was done with the leave of the court, and that the applicant cannot ask the court to review its decision except as required under Order 45 of the Civil Procedure Rules, and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules.
7.The Petitioners further argue that by the court granting leave for amendment, the aspect of admission of the amended petition was spent, and all that is left for determination is the merit of the amended petition.
8.Parties canvassed the motion by way of written submissions and which have been duly considered.
Analysis and Determination
9.I have considered therespondent’s motion application, the grounds in support and those in opposition and the submissions by both parties. The issue that falls for determination is whether the amended petition should be disallowed and be struck out.
13.The Court is by law empowered to allow parties to amend their pleadings at any stage, including at an appellate stage, with the leave of the Court. It is not disputed that the Petitioners through Counsel, sought and obtained leave to amend their petition. It is also not in dispute that the amended petition was filed on 12th February, 2023 and served upon the Respondents.
16.The Applicant’s argument is that the amendments of the petition was done outside the parameters of the law, on the premise that the amendments altered the substratum and character of the petition as initially field.
17.A glance at the original petition vis-à-vis the amended petition, does not in my view, depict a totally or substantially different matter that would of convenience be better of if filed as a fresh suit. It is clear from the record that the amended petition arises out of the same facts as those of the initial petition.
18.In the final analysis, I find the applicant’s motion devoid of merit and is dismissed with costs to the Petitioners.