https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10536

Keiru t/a Kelyn General Services v Standard Chartered Bank (Commercial Case E586 of 2023) [2026] KEHC 10536 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 10536 (KLR) Republic of Kenya In the High Court at Kiambu Commercial Case E586 of 2023 MN Mwangi, J June 19, 2026 Between Charles Githinji Keiru t/a Kelyn General Services Plaintiff and Standard Chartered Bank Defendant Ruling 1.The applicant filed a Notice of Motion application dated 26th September 2025 pursuant to the provisions of Section 3A of the Civil Procedure Act and Order 8 Rules 1 and 3 and Order 51 Rule 1 of the Civil Procedure Rules. The applicant seeks leave of the Court to amend the Plaint and for the Amended Plaint annexed to its affidavit to be deemed as filed and served. 2.The application is premised on the grounds on the face of it, and the affidavit sworn on 26th September 2025 by Mr. Charles Githinji Keiru. He deposed that he filed the suit herein through a Plaint dated 28th November 2023 seeking a permanent injunction against the respondent from proceeding with realization of the security of the property known as L.R. 21976/49, or any sale seeking to sell the said property. The applicant averred that the subject property was sold in a public auction on 22nd May 2024, and that there is need to amend the Plaint to reflect the current position. He contended that the proposed amendments will not prejudice the respondent. He urged this Court to consider the interest of justice and grant the orders sought herein. 3.In opposition to the application, the respondent filed a replying affidavit sworn on 18th November 2025 through its Manager of Legal Collections and Recoveries Unit, Mr. Boniface Machuki. He deposed that the applicant applied for, and he was granted loan facilities which were secured by registration of a charge on the subject property. He stated that the applicant defaulted and the respondent invoked its statutory power of sale. He further stated that the applicant filed the present suit and obtained a conditional interim injunction on 18th January 2024, which he failed to comply with, and it automatically lapsed. 4.Mr. Machuki averred that the respondent sold the property through a public auction on 22nd May 2024, and that the original Plaint which sought a permanent injunction over the subject property was overtaken by events and should be withdrawn. 5.He averred that the amendments seek to substitute the prayers in the Plaint to add a relief for a declaration that the public auction of 22nd May 2024 was unlawful, and a prayer for general damages for unlawful sale of the suit property. He argued that the application has not met the conditions of Order 8 Rule 3(5) of the Civil Procedure Rules. He argued that the proposed amendments are anchored on a future event, they substitute the original cause of action, seek to reboot a moot suit, introduce a new case which will require additional witnesses and new evidence. Further, that the applicant relies on new facts arising after filing of the suit, and exposes the respondent to a new class of liability on damages. 6.He contended that the amendments build a new case completely which violates jurisprudence that amendments cannot be used to rewrite a suit. He contended that the proposed amendments are not merely additional, but entirely new and distinct, which requires the respondent to amend its defence and counterclaim and get additional witnesses. He claimed that the amendments bring a new suit which will prejudice the respondent given that the application was filed 1 year and 5 months after the public auction. He urged this Court to dismiss the application with costs. 7.The application was canvassed by way of written submissions. The applicant filed his submissions dated 29th January 2026 through the law firm of Mogeni & Co. Advocates, whereas the respondent filed its submissions dated 6th February 2026 through the law firm of Muthomi & Karanja Advocates. 8.Ms Makori, learned Counsel for the applicant submitted that the law on amendment of pleadings is provided for under Order 8 of the Civil Procedure Rules and Halsbury’s Laws of England, 4th Ed (re-issue) Vol 36 (1) at paragraph 76. 9.Counsel argued that the amendments are not seeking to introduce a new cause of action given that the unlawful auction was a subject matter in the original Plaint. She stated that in the said Plaint, the plaintiff claimed that the Statutory Notice expired on 22nd September 2023, and it was defective given that the amounts indicated thereon were not due and owing, yet the said Statutory Notice was used to conduct the impugned auction. She also stated that the prayer was on injunctive orders against realization of charged security, which in legal and ordinary meaning includes sale by public auction. She submitted that the proposed amendments flow from the original pleadings and do not introduce new or inconsistent prayers. 10.Ms Makori cited the case of Daykio Plantations Limited v Galba Mining Limited & 4 others [2025] KEHC 4504 (KLR), which quoted the case of Eastern Bakery v Castelino [1958] 1 EA 461, on the principles governing amendments. She stated that the variance of dates appearing in the draft Amended Plaint is purely a clerical error with the correct date being 2nd October 2019 and not 2nd October 2029, which was brought to the Court’s attention on 26th November 2025. She argued that the discrepancy does not go to the substance of the matter, as it does not alter the cause of action or occasion any prejudice to the respondent. She stated that Courts have always argued that clerical and typographical errors are curable by amendments. 11.On the claim for general damages, Ms Makori cited the case of Micro City Computers Limited & another v National Social Security Fund Board of Trustees & another (Civil Appeal No 49 & 59 of 2020) (consolidated) [2024] KECA 444 (KLR) (12th April 2024) (Judgment) (with dissent). She argued that as a result of the auction, the applicant suffered emotional distress, psychological anguish as well as loss of enjoyment of life due to unlawful deprivation of the suit property, which shows that the prayer is justified. 12.Counsel urged this Court to consider Article 159(2)(d) of the Constitution and administer justice without undue regard to procedural technicalities, as the amendments will help the Court determine the real issues and avoid multiplicity of suits. She urged this Court to allow the application as prayed. 13.Mr Karanja, learned Counsel for the respondent argued that the proposed amendments are contrary to Order 8 Rule 3(5) of the Civil Procedure Rules. He stated that the amendments must be read against the controlling principle in Eastern Bakery v Castelino (supra) cited in Daykio Plantations Limited v Galba Mining Limited & 4 others (supra). He reiterated the respondent’s position that the amendments are introducing new facts, a new cause of action and that it enlarges the defendant’s liability exposure thereby changing the whole claim. He submitted that amendment of pleadings is not a matter of right but it is given at the discretion of the Court. 14.He argued that the draft Amended Plaint addresses a date of 2nd October 2029 which has not been seen, which makes the said Amended Plaint untenable. He further stated that since the applicant failed to comply with interlocutory process, an amendment cannot be allowed to re-engineer the suit after losing interim protection. He urged this Court to dismiss the Motion with costs to the respondent. Analysis And Determination 15.I have considered the Notice of Motion, the supporting affidavit, the draft Amended Plaint, the replying affidavit and the submissions filed by Counsel for the parties. The issue that arises for determination is whether amendment of the Plaint should be allowed. 16.Order 3 Rule 1 of the Civil Procedure Rules, 2010, allows a party to amend its pleadings at any stage. It provides as follows:“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.” 17.The Court of Appeal in the case of Ochieng and others v First National Bank of Chicago Civil Appeal Number 147 of 1991, stated as follows on amendment of pleadings-a.The power of the Court to allow amendments is intended to determine the true substantive merits of the case;b.the amendments should be timeously applied for;c.power to amend can be exercised by the Court at any stage of the proceedings;d.that as a general rule however late the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side;e.the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on limitations Act subject however to powers of the Court to still allow and amendment notwithstanding the expiry of current period of limitation. 18.The issue of amendment of pleadings was also discussed in the case of George Gikubu Mbuthia –vs- Consolidated Bank of Kenya Ltd & Anor [2016] eKLR, where the Court of Appeal expressed itself as follows-“As regards the law, the High Court readily accepted that the Court has unfettered discretion to allow amendment of pleadings, which discretion must be exercised judiciously. It accepted too as a general position that parties to a suit have the right to amend their pleadings at any stage of the proceedings before judgment and that Court should liberally allow such amendments. However, he also noted situations when the Court will refuse to exercise its discretion to allow amendments. Such cases include where a new or inconsistent cause of action is introduced; where vested interests or accrued legal rights will be adversely affected; where prejudice or injustice which cannot be properly compensated in costs is occasioned to the other.” 19.This Court has considered the draft Amended Plaint and notes that the amendments therein are in respect to the public auction which was conducted on 22nd May 2024, which shows that the application was not timeously filed, given that it was filed one year and four months later. 20.The sole purpose of amendment of pleadings is to ensure that there will be just determination of all issues in controversy. Delay in applying for leave should however not be the sole reason for declining to grant leave to amend pleadings. This Court is guided by the decision made in Central Bank Limited v Trust Bank Limited (2000) 2EA 365 cited in Andrew Ouko v Kenya Commercial Bank Limited & 3 others [2014] eKLR, where the Court held that:-“The overriding consideration in applications for leave is whether the amendments are necessary for the just determination of the controversy between the parties. Likewise mere delay is not a ground for declining to grant leave. It must be such delay as is likely to prejudice the opposite side beyond monetary compensation in costs. The policy of the law is that amendments to pleadings are to be freely allowed unless allowing them the opposite side would be prejudiced or suffer injustice which cannot be properly compensated by costs.” 21.The main question in this instance is whether the proposed amendments seek to introduce a new cause of action as alleged by the respondent. The Court has read through the original Plaint which shows that the contested issue was on the Statutory Notice, given that the amount claimed was disputed. I note that the original suit sought an order for injunction against realization of any security in the property. This Court is of the considered view that the claim was already set out in the original Plaint and the proposed amendments do not introduce a new cause of action as alleged. This Court finds that there will be no prejudice to be suffered by the respondent if the application for amendment is allowed, as it will be given an opportunity to amend its defence, if it so desires. 22.The issue raised that the draft Amended Plaint bears the wrong date of 2nd October 2029 instead of 2nd October 2019, is a mere typographical error which does not go into the substance of the case. This is because the date refers to when the mortgage facility was applied for. The error can be easily corrected by amendment of the pleadings and the suit cannot be said to be untenable due to such a minor error. 23.This Court therefore allows the Notice of Motion application dated 26th September 2025 and makes the following orders-i.The Plaintiff/applicant is hereby granted leave to amend the Plaint dated 28th November 2023 as per the draft amended plaint annexed to his affidavit;ii.The Amended Plaint will be filed and served within 14 days from today’s Ruling;iii.The defendant/respondent is hereby granted leave to file and serve its Amended Defence within 14 days upon service of the Amended Plaint;iv.This case shall be mentioned before the Deputy Registrar for pre-trial directions on a date which shall be given by the Court upon delivery of this Ruling.v.Costs shall be in the cause. It is so ordered. DATED, SIGNED AND DELIVERED IN KIAMBU ON 19TH DAY OF JUNE 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Mr. Mutinda h/b for Ms Purity Makori for the plaintiff/applicantMr. Njoroge h/b for Mr. Karanja for the defendant/respondentMs Julia – Court Assistant.