https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7527

Dave v Chester Insurance Brokers Limited (Commercial Case E296 of 2022) [2026] KEHC 7527 (KLR) (Commercial and Tax) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 7527 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E296 of 2022 MN Mwangi, J May 22, 2026 Between Hesmita Dave Plaintiff and Chester Insurance Brokers Limited Defendant Ruling 1.The plaintiff filed a Notice of Motion application dated 3rd November 2025 pursuant to the provisions of Order 8 Rules 3 & 5 and Order 51 Rule 1 of the Civil Procedure Rules, 2010, Section 3A of the Civil Procedure Act and all enabling provisions of the law. The plaintiff prays for orders that she be granted leave to amend the plaint in accordance with the draft annexed to her affidavit, that the defendant be granted liberty to file an amended defence and counterclaim upon service of the amended plaint, for the plaintiff be permitted to file an amended reply to the defence and defence to the counterclaim and set-off. The plaintiff also prays that she be allowed to file a revised witness statement with an updated list and bundle of documents, and any other necessary documents to ensure consistency with the amended pleadings. 2.The application is premised on the grounds on the face of the Motion, and it is supported by an affidavit sworn on the same day by Ms Hesmita Dave, the plaintiff herein. Ms Dave averred that the plaintiff originally instructed the law firm of M/s Sonal Raval Advocates to institute this suit against the defendant for among other reliefs, unpaid commissions arising from insurance business procured as an independent contractor, thus pleadings and evidence were duly filed on her behalf. She further averred that she has since instructed the law firm of M/s Mituga & Company Advocates to take over conduct of the matter, thus Mr. Jared Omari Mituga Advocate has filed a Notice of Change of Advocates and is now on record for her. 3.Ms Dave deposed that when new Counsel came on record, the matter had already been fixed for hearing on 4th December 2025, but they held a meeting to review the case in preparation for the hearing and concluded that it had become necessary to amend the plaint dated 29th July 2022 in accordance with the annexed draft, in order to clarify the claim, to properly define the issues in dispute, to file a revised witness statement and an updated list and bundle of documents to align with the proposed amendments. She claimed that the defendant will not suffer prejudice in the event that the orders sought are granted, as they will have an opportunity to amend their defence and counterclaim if necessary. 4.In opposition to the instant application, the defendant filed Grounds of Opposition dated 10th November 2025, raising the following grounds –i.The matter is part-heard, and the hearing had already commenced with the plaintiff in the witness box and amendment at this stage requires special circumstances under Order 8 Rule 3(2) of the Civil Procedure Rules, which have not been demonstrated;ii.The proposed amendments substantially alter the nature of the claim and introduce new claims and computations after commencement of trial, contrary to Order 8 Rule 5(1) of the Civil Procedure Rules;iii.Allowing such amendments would prejudice the defendant by reopening issues, causing delay and amounting to litigation by ambush contrary to Article 50(1) of the Constitution of Kenya, 2010, which guarantees the right to a fair hearing;iv.The application is an afterthought triggered only after the plaintiff faced challenges during testimony and seeks to cure deficiencies in the case, contrary to the principle of finality of pleadings under Order 2 Rule 6 of the Civil Procedure Rules;v.The amendment will disrupt the trial timetable and defeat the overriding objective of expeditious and proportionate resolution of disputes under Sections 1A and 1B of the Civil Procedure Act (Cap. 21); andvi.The application is therefore an abuse of the Court process and ought to be dismissed with costs to the defendant. 5.The defendant also filed a replying affidavit sworn on 10th November 2025 by Mr. Yatin Shah, a Director of the defendant company. Mr. Shah averred that the hearing of this matter had already commenced, with the plaintiff having taken the witness stand and had begun giving her evidence-in-chief. He stated that the proceedings were only halted due to pagination issues raised by the Court. He contended that under Order 8 Rule 3(2) of the Civil Procedure Rules, amendments after commencement of hearing are only permissible in exceptional circumstances, which the plaintiff has failed to demonstrate. He stated that the proposed amendments significantly alter the nature, scope, and quantum of the plaintiff’s claim by introducing new issues and figures not previously pleaded, thereby causing prejudice to the defendant. 6.Mr. Shah deposed that allowing such amendments would result in undue delay, reopen matters already set for hearing, and amount to litigation by ambush contrary to the provisions of Article 50(1) of the Constitution. He asserted that the instant application is intended to cure evidentiary deficiencies that became apparent after the plaintiff had already commenced giving her testimony, contrary to the procedural limits under Order 8 Rules 3(2) and 5(1) of the Civil Procedure Rules. He averred that the defendant would suffer substantial prejudice as it would be required to recall witnesses, restructure its defence, and effectively restart the trial, thereby undermining the overriding objective under Sections 1A & 1B of the Civil Procedure Act. 7.In a rejoinder, the plaintiff filed a supplementary affidavit sworn on 25th November 2025 by Ms Hesmita Dave, the plaintiff herein. Ms Dave deposed that the defendant, having made part payments of his outstanding commission between 2011 and 2020 through her Guardian Bank Limited account, and it is not entitled to rely on the provisions of Order 8 Rule 3(2) of the Civil Procedure Rules to oppose the application herein. She averred that the said provisions grant the Court wide discretion to allow amendments, including those that may introduce or substitute a new cause of action where appropriate. Ms Dave contended that contrary to the defendant’s position, the proposed amendments will not prejudice the defendant, but will instead expedite the hearing by clarifying the claim, providing necessary particulars, and defining the issues in dispute. 8.Ms Dave stated that the defendant will have an opportunity to respond by amending its pleadings and cross-examining her during the hearing, thereby eliminating any risk of trial by ambush. She further averred that the amendments sought are consistent with the provisions of Sections 1A & 1B of the Civil Procedure Act as they promote the just, efficient and expeditious resolution of the dispute by clarifying issues without changing the substance of the claim. She also stated that the defendant will not suffer prejudice as it will be able to respond to the amended pleadings and present evidence regarding commissions earned, paid, and outstanding. 9.The instant application was canvassed by way of written submissions. The plaintiff’s submissions were filed by the law firm of M/S Mituga & Company Advocates on 26th November 2025, whereas the defendant’s submissions were filed by the law firm of Gopichandra & Company Advocates on 19th December 2025. 10.Mr. Mituga, learned Counsel for the plaintiff in relying on the case of Institute for Social Accountability & another v Parliament of Kenya & 2 others; Commission for the Implementation of the Constitution (Interested Party) [2014] KEHC 7356 (KLR) and the Court of Appeal case of Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] KECA 367 (KLR), submitted that the law on amendment of pleadings is well settled and that Courts have consistently held that amendments should generally be allowed at any stage of proceedings, provided that they do not occasion prejudice to the opposing party that cannot be compensated by costs. 11.Counsel argued that in this case, the plaintiff had only just begun her examination-in-chief, hence the Court retains full discretion to allow the amendment since the proceedings are still at the hearing stage. Mr. Mituga cited the Supreme Court case of Githiga & 5 others v Kiru Tea Factory Company Limited [2019] KESC 80 (KLR), and contended that the proposed amendments are necessary to properly define the issues in controversy and ensure that the Court determines the dispute on its substantive merits rather than technicalities. He asserted that any potential prejudice to the defendant can be cured through the filing of amended pleadings, further evidence, and cross-examination of the plaintiff. 12.Mr. Sanjay, learned Counsel for the defendant submitted that under Order 8 Rule 3(2) of the Civil Procedure Rules, 2010, amendments after commencement of hearing are only permissible in exceptional circumstances, and that they are expressly restricted where they introduce a new cause of action or substantially alter the character of the suit. He asserted that pleadings in this suit are deemed closed pursuant to the provisions of Order 2 Rule 6 of the Civil Procedure Rules, and submitted that the Court must also safeguard the defendant’s right to a fair hearing under Article 50(1) of the Constitution of Kenya, as well as uphold the overriding objective under Sections 1A & 1B of the Civil Procedure Act, which require expeditious and proportionate disposal of cases. Mr. Sanjay contended that since the plaintiff had already commenced her examination-in-chief, the strict threshold under Order 8 Rule 3(2) of the Civil Procedure Rules, had been triggered. 13.He relied on the case of Central Kenya Ltd v Trust Bank Limited & 4 others [1996] KECA 197 (KLR) and Joseph Ochieng & 2 others Trading as Aquiline Agencies v First National Bank of Chicago [1995] KECA 31 (KLR). He further relied the Court of Appeal case of Kivanga Estates Limited v National Bank of Kenya Limited [2017] KECA 591 (KLR), and argued that the plaintiff’s proposed amendments introduce new figures, computations, and claims not previously pleaded, thereby altering the scope of the dispute contrary to Order 8 Rule 5(1) of the Civil Procedure Rules. He stated that the interruption of the hearing arose solely from the plaintiff’s failure to properly paginate documents, and not due to any conduct attributable to the defendant. He argued that it would be unjust to allow the plaintiff to benefit from her own procedural lapse by reopening pleadings after trial had commenced. 14.Mr. Sanjay contended that the plaintiff’s attempt to amend arises only after commencing testimony and realizing deficiencies in her pleadings, thereby changing the cause of action and prejudicing the defendant’s right to a fair trial. He cited the case of Njoki Wainaina v Josephat Thuo Githachuri & 3 others; National Land Commission & another (Interested Parties) [2021] KEELC 1553 (KLR) and submitted that the application herein seeks to re-cast the claim in a substantially different form after undue delay. He maintained that allowing the amendments sought would cause substantial prejudice by requiring the reconstitution of the defendant’s defence strategy, recalling of witnesses, and effectively restarting the trial. 15.Counsel referred to the case of Lochab Brothers Limited v Peter A. Mulama [2014] KEHC 1506 (KLR) and reiterated that such prejudice would also undermine the provisions of Sections 1A & 1B of the Civil Procedure Act and the defendant’s fair trial rights under Article 50(1) of the Constitution. He relied on the Supreme Court cases of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others [2014] eKLR and Kassam v Bank of Baroda (Kenya) Ltd [2002] KEHC 1109 (KLR), and submitted that dissatisfaction with prior legal representation is not a valid ground for reopening pleadings. He emphasized that the plaintiff has failed to meet the threshold under Order 8 Rule 3(2) of the Civil Procedure Rules, that the instant application is an afterthought, prejudicial, and contrary to established law, and should be dismissed with costs. Analysis And Determination. 16.Upon consideration of the instant application, the grounds on the face of it and the affidavits filed in support thereof, the grounds of opposition and the replying affidavit by the defendant and the written submissions by Counsel for the parties, the issue that arises for determination is whether the plaintiff has met the threshold for being granted leave to amend the plaint at this stage of the proceedings. 17.Amendment of pleadings with leave of the Court is provided for under Order 8 Rule 3 of the Civil Procedure Rules, 2010, which provides as hereunder: -1.Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.2.Where an application to the court for leave to make an amendment such as is mentioned in sub - rule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such sub - rule if it thinks just so to do.3.An amendment to correct the name of a party may be allowed under sub - rule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued.4.An amendment to alter the capacity in which a party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under subrule (2) if the capacity in which the party will sue is one in which at the date of filing of the plaint or counterclaim, he could have sued.5.An amendment may be allowed under sub - rule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment. 18.It is trite that this Court has the discretion to order for the amendment of any document pursuant to the provisions of Order 8 Rule 5(1) of the Civil Procedure Rules, 2010 which provides as hereunder –"For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and, on such terms, as to costs or otherwise as are just." 19.The guiding principle, as consistently enunciated in case law is that amendments should generally be freely allowed if they are necessary for the just determination of the real issues in controversy, and provided that no prejudice is occasioned to the opposite party that cannot be compensated by an award of costs. In the case of Kassam v Bank of Baroda (Kenya) Ltd (supra), the Court laid down the factors to be considered when dealing with an application for amendment of pleadings as hereunder –a.The party applying is not acting mala fides;b.The amendment will not cause some injury to the other side which cannot be compensated by costs;c.The amendment is not a device to abuse the court process;d.The amendment is necessary for the purpose of determining the real questions in controversy between the parties and avoid multiplicity of suits;e.And that the amendment will not alter the character of the suit. 20.It is not disputed that the hearing of this matter has commenced and the plaintiff had begun giving her evidence-in-chief before the hearing was stopped and she was stood down due to issues with pagination of her documents. In the premise, I am persuaded that this brings the application herein within the ambit of the provisions of Order 8 Rule 3(2) of the Civil Procedure Rules, 2010. The mere fact that the hearing had commenced does not in itself, bar the Court from allowing amendments, though such discretion must be exercised cautiously and only upon demonstration of sufficient cause or exceptional circumstances. 21.In her supporting affidavit, the plaintiff averred that upon a review of this matter by new Counsel, it became apparent that the plaint required amendment in order to clarify the claim, provide necessary particulars, and properly define the issues in controversy. Upon examination of the plaintiff’s draft amended plaint, this Court is satisfied that the proposed amendments are aimed at bringing out the true state of the plaintiff’s claim and ensuring that the dispute is determined on its substantive merits rather than on technical or incomplete pleadings. This Court is not persuaded that the proposed amendments introduce a new cause of action or substantially alter the nature of the suit. 22.To the contrary, this Court is of the considered view that the amendments sought to be introduced are directed at particularizing the plaintiff’s claim for unpaid commissions rather than introducing a fundamentally new or inconsistent cause of action. It is however noteworthy that even where an amendment may have the effect of introducing additional particulars or redefining the claim, Courts still retain the discretion pursuant to the provisions of Order 8 Rule 5 of the Civil Procedure Rules to allow such amendment, so long as it is necessary for determining the real questions in controversy. 23.On the issue of prejudice, the defendant contended that it will suffer prejudice as it will be required to restructure its defence, recall witnesses, and effectively restart the trial. The record however shows that by the time the plaintiff was stood down and the proceedings adjourned, she was still being examined in chief. She had not yet been subjected to cross-examination by the defendant’s Counsel and the defendant’s witness had not yet testified. This Court is therefore satisfied that granting the orders being sought herein will not require the recall of witnesses, save for the plaintiff. I am as such not persuaded that by seeking to amend her plaint, the plaintiff seeks to fill evidentiary gaps in her case. 24.While this Court acknowledges that some inconvenience may arise from the plaintiff amending her plaint, it is not persuaded that such prejudice cannot be adequately compensated by an award of costs and by granting the defendant corresponding leave to amend its defence and counterclaim and to adduce further evidence. Additionally, the defendant will have the full opportunity to cross-examine the plaintiff’s witness on the amended claim, and to adduce evidence by calling witnesses. 25.In the case of Joshua Kimani v Kiso Enterprises Ltd, Ketan Doshi, Chief Lands Registrar & Attorney General [2020] KEELC 1199 (KLR), the Court held as follows on the issue of amendment: -“The Learned Authors of Halsbury’s Laws of England, 4th Ed (Re-Issue), Vol. 36(1) at paragraph 76, state the following about amendments of pleadings: -“…The purpose of the amendment is to facilitate the determination of the real question in controversy between the parties to any proceedings, and for this purpose the Court may at any stage order the amendment of any document, either on application by any party to the proceedings or of its own motion.…The person applying for amendment must be acting in good faith. Amendment will not be allowed at a late stage of the trial if on analysis of it, it is intended for the first time thereby to advance a new ground of defence. If the amendment for which leave is asked seeks to repair an omission due to negligence or carelessness, leave to amend may be granted if the amendment can be made without injustice to the other side…” (Emphasis added). 26.This Court is also mindful of the overriding objective provided for under Sections 1A & 1B of the Civil Procedure Act, which requires the Court to facilitate the just, expeditious, and proportionate resolution of disputes. In the circumstances of this case, I am satisfied that allowing the amendments sought by the plaintiff will serve to clarify the issues in dispute and avoid multiplicity of proceedings, thereby enhancing the Court’s ability to determine the matter conclusively and on its merits. In balancing the competing interests, this Court is persuaded that it is in the interest of justice to allow the plaintiff to amend the plaint so that the real issues in controversy between the parties herein may be fully ventilated. 27.In the premise, this Court is satisfied that the plaintiff has demonstrated sufficient cause and that she has met the threshold for the exercise of this Court’s discretion under Order 8 Rule 3(2) of the Civil Procedure Rules, 2010, to warrant the exercise of this Court’s discretion in her favour. 28.Accordingly, it is my finding that the plaintiff’s application dated 3rd November 2025 is merited. It is hereby allowed in the following terms -i.The plaintiff is hereby granted leave to amend the plaint herein as per the draft amended plaint. The amended plaint shall be filed and served within fourteen days from the date of this Ruling;ii.The defendant is granted leave to file an amended defence and counterclaim, within fourteen (14) days of service of the amended plaint;iii.The plaintiff is granted leave to file a reply to the amended defence and counterclaim within fourteen (14) days of service;iv.The plaintiff is granted leave to file a revised witness statement, list and bundle of documents and any other necessary documents to align its documents with the amended pleadings;v.Corresponding leave is granted to the defendant; andvi.Thrown away costs of Kshs.40,000/= are awarded to the defendant for the inconvenience caused by the plaintiff.It is so ordered. DATED, SIGNED AND DELIVERED AT KIAMBU ON THIS 22ND DAY OF MAY 2026.Ruling delivered through Microsoft Teams Online Platform.NJOKI MWANGIJUDGEIn the presence of :-Mr. Mituga for the plaintiff/applicantMr. Sanjay Bhansali for the defendant/respondentMs Julia – Court Assistant.Page 3 of 3NJOKI MWANGI, J.**