https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7467

Mohamud & another v First Community Bank (Commercial Case 154 of 2018) [2026] KEHC 7467 (KLR) (Commercial and Tax) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7467 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case 154 of 2018 MO Ado, J May 28, 2026 Between Abdikadir Arab Mohamud 1st Plaintiff Mohamed Issa Bare 2nd Plaintiff and First Community Bank Defendant Ruling Introduction 1.The Plaintiffs seek leave to further amend their plaint pursuant to the Notice of Motion dated 20th May 2025. The application is supported by the affidavit of Abdikadir Arab Mohamud, sworn on the same date. The Defendant opposes the application through the replying affidavit of Claris Ogombo, sworn on 26th June 2025. 2.The application has been canvassed by written submissions, which I have considered together with the pleadings and affidavits on record. Background 3.This suit concerns the Defendant's exercise of its statutory power of sale over L.R. No. 36/11/318, which had been charged as security for a Diminishing Musharak Financing facility advanced to Golden Real Estate Limited. 4.When the suit was filed, the Plaintiffs challenged the Defendant's intended realization of the security and sought injunctive relief over all the apartment units erected on the suit property. During the pendency of the suit, several interlocutory applications were determined and various orders issued by the Court affecting the status of the property. Certain units were sold pursuant to court-sanctioned processes while others remained protected by injunctive orders. 5.The Plaintiffs now contend that in view of those developments, the dispute has narrowed considerably and that the plaint ought to be amended to reflect the units that remain in controversy. 6.The Defendant opposes the amendment on the ground that it seeks to reopen issues already settled by previous rulings and a completed auction sale and that it has been brought after an inordinate delay. Analysis and Determination 7.From the pleadings and submissions, the sole issue for determination is whether the Plaintiffs should be granted leave to further amend the plaint. 8.The power of the Court to permit amendment of pleadings is donated by Order 8, Rules 3 and 5 of the Civil Procedure Rules. The purpose of amendment is to facilitate determination of the real questions in controversy between the parties. The discretion to permit amendment is wide and may be exercised at any stage of the proceedings, provided no injustice is occasioned to the opposite party. 9.The applicable principles are settled. In Eastern Bakery v Castelino [1958] EA 461, the former Court of Appeal for Eastern Africa held that amendments sought before hearing should be freely allowed if they can be made without injustice to the other side, and that there is no injustice if the other party can be compensated by costs. The same principles were reaffirmed by the Court of Appeal in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013] eKLR. 10.The proposed amendment must therefore be examined against those principles. The Defendant's principal objection is that the amendment seeks to reintroduce disputes concerning four ground-floor units which were sold pursuant to a public auction conducted on 2nd September 2020. It argues that the amendment is intended to defeat accrued rights arising from that sale and to reopen issues already determined by the Court. 11.I have considered the draft further amended plaint. The proposed amendments do not introduce a new cause of action. The dispute remains anchored on the same transaction; namely, the charge over the suit property and the Defendant's realization of the security. What the Plaintiffs seek to do is to redefine the scope of the reliefs sought in light of developments that occurred after the institution of the suit. 12.Whether the units identified by the Plaintiffs remain available for relief, whether the Defendant lawfully exercised its statutory power of sale, and whether any rights accrued to third parties are questions that go to the merits of the dispute. Those issues are not for determination at this stage. The Court is only concerned with whether the Plaintiffs should be allowed to place their amended case before the Court for adjudication. 13.I am not persuaded that the proposed amendment amounts to an invitation for the Court to sit on appeal over its previous rulings. Granting leave to amend does not determine the validity of the Plaintiffs' claims. It merely permits those claims to be pleaded and tested at trial. 14.The Defendant has also relied on delay. There is no dispute that the application has been brought several years after the impugned auction sale. Delay, however, is not by itself a bar to amendment. The question is whether the delay has occasioned prejudice that cannot be compensated by costs or otherwise cured through appropriate directions. 15.This matter has been marked by extensive interlocutory litigation, multiple rulings, and changing circumstances concerning the suit property. In that context, I am unable to conclude that the delay is so prejudicial as to warrant shutting out the Plaintiffs from presenting their amended claim. 16.The Defendant contends that it will suffer prejudice because it may be exposed to claims arising from transactions already concluded. I do not consider such prejudice incapable of compensation or management within the proceedings. The Defendant will have the opportunity to amend its defence and raise all legal and factual objections available to it. Further, no vested defence or accrued right has been shown to be incapable of protection at trial. 17.In any event, the proposed amendments arise from the same factual matrix already before the Court and are directed at refining the issues for determination. 18.In keeping with the overriding objective under sections 1A and 1B of the Civil Procedure Act and the well-established policy and Constitutional command under Article 159 of the Constitution of Kenya that disputes should be determined on their merits, I am satisfied that leave to amend ought to be granted. 19.Accordingly, the Notice of Motion dated 20th May 2025 is allowed on the following terms:i.The Plaintiffs shall file and serve the Further Amended Plaint within fourteen (14) days from the date hereof.ii.The Defendant shall be at liberty to file and serve an Amended Statement of Defence within fourteen (14) days of service of the Further Amended Plaint.iii.Costs shall be in the cause. 20.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 28TH DAY OF MAY 2026HON. MR. JUSTICE MOSES ADO JUDGE OF THE HIGH COURTIn the Presence of:Moses C/AOchieng………………for the Plaintiff/ApplicantNyakundi……………for the Defendant/Respondent