Kithanta v Julius (Civil Appeal E035 of 2025) [2026] KEHC 9338 (KLR) (29 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT CHUKA** **CIVIL APPEAL NO. E035 OF 2025** ALEXANDER MUGENDI KITHANTA……….APPELLANT VERSUS DR. LUCY WANJA JULIUS…………………….RESPODENT (*Being an Appeal against the Ruling and Order of Hon. Wachira Tracy Wanjiku (R.M.) SCC No. E071 of 2025 delivered on 10th September, 2025 )* **JUDGEMENT** 1. This matter arises from the ruling and order of Hon. Wachira Tracy (RM) in Chuka SCCCOM No. E071 of 2025 delivered on 10th September 2025. The Claimant (Respondent) sued the Respondent (Appellant) for the sum of Kshs. 320,763 being a refund of monies paid to the Respondent for fixing and/or erecting bill boards for the Claimant who was then vying for the position of Women Representative, Tharaka Nithi County and which billboards the Respondent failed to erect and instead made two banners which he did not even erect. 2. The Respondent filed a response to the claim denying the Claimant’s assertions and instead averred that he was neither contracted by the Claimant to do any work for the making, fixing and/or erection of the billboards as alleged nor was there any binding oral or written agreement between the parties to that effect. Further, that any sums send to the Respondent had nothing to do with the agreement between the parties but transactions unrelated to erection of billboards. 3. The matter partially proceeded before the trial court with the Claimant testifying. 4. On 27th August 2025, the Respondent filed an application seeking inter alia the following orders: - 5. Leave to file, rely and produce a further list and bundle of documents out of time. 6. Upon leave being granted, the further list of documents dated 8th August 2025 annexed to the Respondent’s supporting affidavit be deemed as properly on record upon payment of requisite fees. 7. Leave be granted to the Respondent to serve the said further list of documents together with the bank statement and amended pleadings upon the Respondent 8. Costs of the Application. 9. The Claimant also filed an Application dated 2nd September 2025 seeking the following orders: - 10. Leave to file, rely and produce a further list and bundle of documents out of time. 11. Upon leave being granted, the further list of documents dated 2nd September 2025 annexed to the Claimant’s supporting affidavit be deemed as properly on record upon payment of requisite fees. 12. Leave to the Claimant to further amend her pleadings. 13. Upon leave being granted, the annexed amended pleadings be deemed as duly filed. 14. Leave be granted to the Claimant to serve the said further list of documents together with the bank statement and amended pleadings upon the Respondent 15. Costs of the Application. 16. The Applications were canvassed orally before the trial court. The Claimant argued that he sought to introduce bank and mpesa statements and also amend the month of payment. 17. On his part the Respondent argued that the Claimant sought to fill in gaps that had been exposed during cross examination. 18. The trial court rendered its ruling on 4th September 2025 on both Applications granting the Claimant one hour’s leave to file the additional list of documents and the hearing to proceed. 19. Dissatisfied with the ruling, the Appellant (then Respondent) lodged the Appeal on the following grounds as per the Memorandum of Appeal dated 22nd September 2025:- 20. That the learned adjudicator erred in law by allowing the Respondent’s Applications dated 27th August 2025 and 2nd September 2025 seeking inter alia leave to file, rely on, and produce a further list and bundle of documents out of time and leave to amend the Respondent’s pleadings. 21. That the learned trial adjudicator erred both in law and in fact by failing to note and appreciate the fact that the Respondent’s said Applications were informed primarily and solely by the deficiencies, gaps and/or lacuna in the Respondent’s case during cross examination of the Respondent herein on 26th August 2025 thereby permitting the Respondent herein to litigate in piecemeal, overreach and steal a match on the Respondent, to the Appellant’s prejudice. 22. That the trial court erred in law by disregarding and/or failing to consider the Appellant’s submissions and authorities cited particularly the Supreme Court rendition in **Mohammed Abdi Mohamud v Ahmed Abdulahi Mohamud & 3 Others [2018] eKLR** to the effect interalia , that before allowing the adduction of additional evidence, the court must be satisfied that the additional evidence is not utilized for the purposes of removing lacuna or filling gaps in evidence and that the evidence could not have been obtained even with reasonable diligence for trial. 23. That the learned Adjudicator further erred in law by failing, neglecting, and/or refusing to consider the Appellant's submissions and authority in **Momanyi & another v. Ongwae & 3 others (Environment 6 land Case E007 of [2024] KEELC 6932 (KLR) (23 October 2024)**to the effect that courts should be slow in allowing applications to adduce additional evidence, otherwise there is risk of a party waiting to see how the first hearing has progressed, then try and fill in the gaps by applying to adduce additional evidence, when the defendant had already prepared his case based on what the plaintiff affirmed would be the evidence that he will produce. 24. That the trial Court misdirected itself and erred in law by erroneously finding and holding that the Appellant's objection to the production of additional evidence and amendment of pleadings after witnesses have begun testifying is a technicality issue not envisaged by the drafters of the Small Claims Court Act permitted under Section 17 of the Small Claims Court Act and Rule 17 of the Small Claims Court Rules. 25. That the learned Adjudicator erred in law by failing to note, appreciate, take into account, find, and/or hold that the amendments sought by the Respondent herein in her application dated 2nd September, 2025 amount to the substitution or alteration of the Respondent's original cause of action and to the introduction of a new cause of action and inconsistent and contradictory allegations of fact which are at odds with the admitted position of facts in the Respondent's own pleadings. 26. That the trial Court erred in law by finding and holding that the Appellant herein would not be prejudiced by the allowance of the Respondent's applications at a stage when hearing had commenced and insisting that the further hearing of the matter proceeds in an hour or so of the ruling without the Appellant herein being granted sufficient time and opportunity to respond to the new documents and/or amend his pleadings accordingly. 27. That the learned Adjudicator erred in law and misdirected herself by failing to note that the issue of the existence or otherwise of the alleged Kshs. 100,000/= which the Respondent herein sought to introduce into evidence was already tested during hearing of the matter on 26‘h August, 2025 whereupon it was conclusively established and even noted by the trial Court that no such document was on record, hence permitting its introduction at this stage when hearing had commenced and the Respondent's only witness has begun testifying would amount to an impermissible attempt to reopen and reconstruct the Respondent’s case against the Appellant herein. 28. That the trial Court erred in law by allowing the Respondent herein to file a further list and bundle of documents after the hearing of her case has commenced, thereby ignoring the mandatory requirement under Rule 17 (5) of the Small Claims Court Rule, 20)9 to the effect that while nothing prevents a party from filing and serving on the other parties a supplementary list of evidential documents, including additional( documents not previously disclosed or served, the same must be filed and served not later than three (3) days before the date fixed for hearing of the claim. 29. The Appellant proposed that the appeal be allowed with costs to the Appellant. 30. As a general principle a first appellate court is duty bound to revisit, reassess, and analyse the entire body of evidence on record and draw its own independent conclusions. An appeal to the High court from a small claims court is however circumscribed by Section 38 of the Small Claims Court Act which provides as follows: - **“A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.(2) An appeal from any decision or order referred to in subsection (1) shall be final."** 1. The Appeal was canvassed by way of written submissions. The Appellant filed his written submissions dated 9th February 2026 raising the following issues for determination: - 2. Whether the trial court erred in law by granting the Respondent herein leave to amend her statement of claim dated 20th June 2025 after hearing had commenced. 3. Whether the trial court erred by granting the Respondent herein leave to file further list and bundle of documents after hearing had commenced. 4. Who bears the costs of the Appeal? 5. The Respondent filed her written submissions dated 24th February 2026 raising the following issues for determination: - 6. Whether the trial court erred in law in allowing the Respondent to amend her claim and list of documents after partial cross examination. 7. Whether the learned adjudicator improperly exercised discretion. 8. Whether the Appellant has demonstrated any prejudice incapable of being remedied. 9. I have considered the pleadings and submissions by the parties herein and find the following issues for determination: - 10. Whether the trial court erred in law by granting the Respondent herein leave to amend her statement of claim dated 20th June 2025 and file a further list of documents after hearing had commenced. 11. Whether the trial court erred in denying the Respondent leave to respond to the amended statement of claim or any additional documents if any. 12. The Appellant submitted that although Rule 17(2) of the Small Claims Court Rules permits the trial court to grant leave to amend pleadings after the commencement of the hearing, that discretion must be exercised judiciously and in accordance with established principles. It was argued that the trial court erred by allowing the Respondent's application to amend her pleadings and introduce further documents after the hearing had commenced, while simultaneously directing that the hearing proceed within an hour. According to the Appellant, this denied it the opportunity contemplated under Rule 17(5) to respond to the amendments, thereby violating its right to a fair hearing under Article 50 of the Constitution. 13. The Appellant further contended that the amendments were not intended to assist the court in determining the real issues in controversy but were instead an afterthought designed to cure evidential deficiencies exposed during cross-examination. It was argued that the amendments introduced a new factual basis regarding the alleged payment of Kshs. 50,300, which had not been supported by evidence in the original claim and only emerged after the weakness in the Respondent's case had been exposed. The Appellant submitted that permitting such amendments amounted to trial by ambush and caused substantial prejudice. 14. Reliance was placed on **Julius Nzioki Wambua v Mohamed Salim Khamis & Another*,* Eastern Bakery v Castelino [1958] 1 EA*,* Lakhamshi Khimji Shah & Another v Ajay Shantilal Shah & 2 Others [2010] eKLR*,* Erastus Chooba Wahome & 2 Others v David Kariuki Githiga & 4 Others*, and* Central Kenya Ltd v Trust Bank Ltd & 5 Others [2002] eKLR** for the proposition that amendments should not be allowed where they are intended to repair weaknesses exposed during trial, introduce a new or inconsistent cause of action, occasion undue prejudice to the opposing party, or affect accrued rights. 15. The Appellant further relied on **Mrao Ltd v First American Bank of Kenya Ltd & 2 Others** **[2003] eKLR** to submit that an appellate court may interfere with the exercise of judicial discretion where the trial court misdirected itself on the law, failed to consider relevant factors, or reached a plainly wrong decision. It was therefore urged that the trial court improperly exercised its discretion by allowing amendments that unfairly prejudiced the Appellant rather than facilitating the just determination of the dispute. 16. The Respondent on her part contended that she sought leave to amend her pleadings and include two documents which were a bank statement containing Kshs. 100,000 paid from her account to the Appellant and an mpesa statement showing Kshs. 50,300 paid through mpesa. That the amendment was to correct that Kshs. 50,300 had been paid in cash thus it was meant to clarify the mode of payment. 17. She argued that cross examination had not concluded thus the court did nor err in allowing the amendment. In support of her argument, she relied on the case of **Institute for Social Accountability & Another v Parliament of Kenya & 2 Others; Commission for the Implementation of the Constitution [2014] eKLR** where the court stated that the object of amendment of pleadings is to enable parties to alter their pleadings so as to ensure that litigation is not conducted on false hypothesis of facts. 18. The governing provision is **Rule 17 of the Small Claims Court Rules, 2019 (Legal Notice No. 145 of 2019)**, which establishes a two-tier regime for amendment of pleadings. Under Rule 17(1), a party may amend and serve their Statement of Claim, response or counterclaim at any time, but not later than seven days before the date fixed for hearing. Under Rule 17(2), where hearing has commenced, a party may, with leave of the Court on written application, amend and serve any such documents on such terms as the Court may direct. Further, Rule 17(5) provides that any party wishing to respond to an amendment shall file and serve their response within seven days of being served with the amended document, or within such period as the Court may direct. 19. It follows that the law does not categorically prohibit amendment of pleadings after the commencement of hearing. It does, however, impose a precondition of leave and reserves discretion in the Court to impose terms. The critical question therefore is not whether the Court could grant leave, but whether it exercised that discretion judiciously and in accordance with established principles. 20. The object of the power to amend is well settled. As a general principle, courts will normally allow amendment of pleadings at the early stages of the proceedings if it can be done without occasioning injustice or prejudice to the other party and where such prejudice can be compensated by an award of costs. 21. The object of amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted not on the false hypothesis of the facts already pleaded, but rather on the basis of the true state of the facts which the parties really and finally intend to rely on. This principle was affirmed by a three-judge bench in **Institute for Social Accountability & Another v Parliament of Kenya & 3 Others [2014] eKLR**, a decision relied upon by the Respondent. 22. However, this general latitude has clear and well-defined limits. The Court of Appeal in **Joseph Ochieng & 2 Others Trading as Aquiline Agencies v First National Bank of Chicago** **[1995]** **eKLR** held that a late amendment should generally be allowed if made in good faith and costs can compensate the other side; but where the court is not satisfied as to the truth and substantiality of the proposed amendment, it ought to be disallowed. 23. This Court is also mindful that the Small Claims Court is, by its very design and statutory mandate, a forum intended to resolve disputes on their substantive merits with minimum procedural formality, and that the trial court is clothed with wide discretion in the management of proceedings before it. The grant of leave to amend was not, in and of itself, an impermissible exercise of that discretion. Rule 17(2) expressly contemplates that such leave may be granted after the commencement of hearing, subject to such terms as the Court may impose. The trial court was therefore within the bounds of its discretion in allowing the amendment to stand. 24. It is my finding that the trial court was not in error when it granted leave to the claimant to file further documents. Her decision was backed by law as shown above. The issue was how the time frame affected the Respondent’s right of rebuttal. 25. The trial court directed that hearing would proceed within one hour of the ruling granting leave. The Appellant was aggrieved that the limited time would not give him an opportunity to respond by seeking leave to file his own documents in rebuttal. 26. Rule 17(5) of the Small Claims Court Rules expressly entitles a party served with an amended document to file and serve a response within seven days, or within such period as the Court may direct. 27. However, by directing the hearing to resume within one hour of the ruling, the trial court effectively denied the Appellant the procedural entitlement expressly preserved by Rule 17(5) of the Small Claims Court Rules namely, the right to file and serve a response to the amended pleadings within seven days of service, or within such other period as the Court may direct. The one hour timeline while achieving expediency in trial would not deliver procedural justice to the Respondent. It would afford no meaningful opportunity to study the amended pleadings, take fresh instructions, or amend his own response accordingly. 28. The trial court correctly identified its power to grant leave but misdirected itself in the terms it attached to that grant by failing to secure to the Appellant the minimum safeguard mandated by Rule 17(5). 29. The purpose of allowing an amendment of pleadings is to enable the Court to determine the real issues in controversy between the parties once and for all. That purpose is not served and justice is not done where the party opposing the amendment is not given a realistic opportunity to respond to it. 30. An appellate court may interfere with the exercise of discretion by a lower court where it is shown that the court misdirected itself on the law, failed to take into account relevant considerations, or reached a conclusion that is plainly wrong. 31. In the result, the Appeal partially succeeds in the following terms: - 32. The trial court's ruling which granted the Respondent leave to amend the Statement of Claim and to file a further list and bundle of documents is hereby **upheld**, as the grant of leave was within the lawful discretion of the trial court under Rule 17(2) of the Small Claims Court Rules, 2019. 33. The Appellant shall be granted leave before the trial court to file a response to the amended statement of claim and additional documents if any in compliance with Rule 17(5) of the Small Claims Court Rules, 2019. 34. The matter is hereby **remitted back to the Small Claims Court** for continued hearing and determination on its merits. 35. The Appellant shall get half the costs of this Appeal. **Judgement delivered, dated and signed at Chuka this 29th day of June, 2026.** **..........................** **R. LAGAT-KORIR** **JUDGE** **Judgement delivered in the presence of Mr. Amati for the Respondent and in the absence of the Appellant; Muriuki (Court Assistant.)**