https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/104

Kimanthi t/a Miale Centre (Formerly Jambo Traders v Sidian Bank of Kenya Ltd (Civil Case 162 of 2019) [2026] KEMC 104 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEMC 104 (KLR) Republic of Kenya In the Makindu Law Courts Civil Case 162 of 2019 YA Shikanda, SPM May 26, 2026 Between Francis Mutunga Kimanthi t/a Miale Centre (Formerly Jambo Traders Applicant and Sidian Bank Of Kenya Ltd Respondent Ruling The Application 1.This ruling relates to an application that has remained pending before this Court for an inordinately long period of time. The delay in its determination has largely been occasioned by the conduct of the parties, who over the years filed numerous interlocutory applications and raised several collateral issues which diverted attention from the substantive application now falling for determination. The progress of the matter was further hampered by the unfortunate disappearance of the court file for a considerable period, thereby occasioning additional delay beyond the control of the Court. The ruling on the instant application was to be delivered by my predecessor way back in 2023 but for some unexplained reasons, no further proceedings were taken after directions were given for the parties to file submissions. 2.Consequently, what ought to have been a straightforward determination became protracted, to the detriment of the expeditious disposal of the dispute as contemplated under Article 159 (2) (b) of the Constitution of Kenya that dictates that justice shall not be delayed as well as the overriding objective of the Civil Procedure Act and the rules made thereunder, meant to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. The Plaintiff herein moved the court by way of a Notice of motion mainly pursuant to the provisions of Order 8 rule 3 of the Civil Procedure Rules. The application is dated 28/5/2021 and was filed on 3/6/2021. The application seeks the following orders:1.The plaintiff/applicant be granted leave to amend his plaint as per the annexed draft amended plaint;2.The amended plaint be deemed as duly and properly filed;3.The costs of this application be provided for. 3.The application is supported by the affidavit of the plaintiff/applicant and is premised on several grounds, some of which are not germane to the application. I will only highlight those that relate to the application:a.When the plaintiff gave instructions to his advocates to file this suit, he failed to give the full and proper account names;b.The plaintiff had erroneously and mistakenly admitted having received some loans which were never offered and/or given or and/or offered but not given;c.The plaintiff had not given particulars of some of the sums claimed in his plaint;d.The amendment of the plaint will not in any way prejudice the defendant as the account transactions are critical in the calculations regarding repayment of the loans and the moneys claimed against the defendant. 4.In the affidavit in support of the application, the applicant reiterated the grounds on the face of the application and deposed that it was important to amend the plaint and clarify the discrepancies which also touch on the plaintiff’s claims against the defendant. That there were so many unlawful entries in the plaintiff’s personal bank accounts which were not genuine and/or justified. The plaintiff further deposed that it was important to amend the plaint so that the real issues could be brought before court for proper adjudication and determination. The Defendant’s Response 5.The defendant opposed the application by filing a Replying affidavit sworn by one Jackline Ndung’u, who claimed to be the defendant’s Senior Legal officer. From the replying affidavit, the grounds of opposition are:a.The application is incompetent, fatally defective and incurable as the purported supporting affidavit was not sworn before a Commissioner for oaths;b.The draft amended plaint was not endorsed by a Commissioner for oaths and as such, it cannot amount to evidence;c.The intended amendment proposes to introduce a new cause of action and a new party and the same does not meet the threshold under Order 8 rule 5 of the Civil Procedure Rules;d.The application has been brought after a prolonged delay, which delay has not been explained;e.The application was made mala fide and is an abuse of the process of the court. Main Issues for Determination 6.Having considered the application and the response by the defendant, I find that the main issue for determination is whether there are sufficient grounds to warrant an order for amendment of the plaint. The Plaintiff's/Applicant’s Submissions 7.The plaintiff filed written submissions on 24/11/2023. He relied on the provisions of Order 8 rules 3 and 5 and submitted that the fundamental rule is that a party can amend their pleadings any time before final judgment. That there would be no prejudice to the other party who would always be at liberty to amend their pleadings as well. The plaintiff argued that even where the amendment introduces a new case, the same should be allowed unless it would change the action into one of a substantially different character that would be more conveniently be made subject of a fresh action. The plaintiff argued that the defendant would not be prejudiced in any way as they would be at liberty to amend their defence. The plaintiff relied on the authorities of John Nyagaka Osoro v Reynold Karisa Charo & 5 others [2021] eKLR and Lewa Ventures Limited v Equity Bank (Kenya) Limited [2022] eKLR. Submissions by the Defendant/Respondent 8.The defendant/respondent did not file any submissions. Analysis and Determination 9.I have considered the application as well as the response by the defendant. I have further considered the applicable law. While perusing the application, my attention was drawn to the draft amended plaint whose proposed prayer, among others, is a sum of Ksh. 21,268,130.54/=. That is a claim that is beyond the pecuniary jurisdiction of this court or any Magistrate’s court for that matter. Ordinarily, there would be no reason to refuse the amendment. In fact, the grounds of opposition by the defendant do not hold water. I have agonized over the question whether the court would allow an amendment whose effect would result in a claim way beyond the jurisdiction of the court. 10.My view is that a court should not allow an amendment to a plaint if the effect of the amendment would be to divest or oust the court of the very jurisdiction upon which the suit was instituted and is being entertained. Jurisdiction is foundational; without it, a court has no power to take further steps other than to down its tools. It would not make any sense for the court to allow the amendment then later down its tools for want of jurisdiction. The purpose of the amendment would not have been served. In my opinion, if the effect of the proposed amendment would result in a claim beyond the jurisdiction of the court, the party proposing the amendment should, in the circumstances of this case, apply for the matter to be transferred to the High Court then seek amendment of the plaint at the High court. For that reason, I am inclined to decline the prayer by the plaintiff. Disposition 11.In view of the foregoing, I find that the application dated 28/5/2021 is devoid of merit. I proceed to dismiss it. I will not make any orders as to costs since were it not for the issue of jurisdiction, the application would have been allowed. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 26TH DAY OF MAY, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.