Mutisya & 6 others v Munala & 2 others

**REPUBLIC OF KENYA** **IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI** **TRIBUNAL CASE NO. E742 OF 2019** **(Coram: Hon. J. Mwatsama- Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)** **JAMES MUTISYA………………………………1ST APPLICANT /CLAIMANT** **SYLVESTERSABURI MWAZAMA……………..2ND APPLICANT/CLAIMANT** **HOPE LAURA LIME…………………………….3RD APPLICANT/CLAIMANT** **BENSON OLUOCH NYAGOL…………………4TH APLICANT/ CLAIMANT** **PETER KANYI……………………………………5TH APPLICANT/CLAIMANT** **CHRISTOPHER MUSYOKA MUTETI…………...6TH APPLICANT/CLAIMANT** **VERSUS** **ALPHAYO CHIMWAGA MUNALA……………………….1ST RESPONDENT** **TERENCE BAVON MINISHI……….………………………2ND RESPONDENT** **HAZINA SACCO SOCIETY LTD………………………….3RD RESPONDENT** **RULING** 1. This ruling dispenses the Applicants/Claimants Notice of Motion Application dated 4th may 2026 brought pursuant to section 3 and 3A of the Civil Procedure Act, Order 1 Rule 3 and 10 (1), Order 8 Rule 3 and 5 of the Civil Procedure Rules 2010 and any other relevant provisions of the law seeking for the following orders: 2. That the Tribunal be pleased to grant the 1st to 6th Claimants leave to amend their pleadings including the Statement of Claim dated 3rd September 2019. 3. That the costs of and incidental to this Application to be in the cause. 4. The Application is premised on the Grounds on the face of the Motion and Supported by an Affidavit sworn by Peter Kanyi the 5th Claimant who deponed that from the date that they filed the suit in 2019, circumstances have so far changed to the extend that they needed to amend the prayers sought. They listed some of the new developments as follows: 5. That the 2nd Claimant has been compensated and that he does not have any interest to pursue his claim against the Respondents hence the need to amend the parties. 6. That the 4th Claimant lost interest to pursue his Claim against the Respondents. 7. That there is a new party who would like to be enjoined in the suit as a Claimant against the Respondents. The Claim from the new party arose from the same transaction and circumstances. 8. That the amendment of the joinder is necessary to avoid duplicity of suits and to enable the Tribunal to determine the matter with finality. 9. That the amounts which have been deducted from them by the Respondent are now identifiable. 10. That since the filing of the suit in 2019, circumstances have evolved such that the original prayers do not capture the losses which have been suffered by the Claimants. 11. That there is no prejudice that will be occasioned to the Respondent if the intended amendments are allowed. 12. The Claimants filed a draft of the amended Statement of Claim to accommodate the changes and served upon the Respondents as detailed in the Affidavit of service sworn by Elizabeth Macharia and dated 15th May 2026. 13. The Respondents did not oppose the Application neither did they file any Written Submissions despite the directions given by the Tribunal on 16th June 2026. In compliance, the claimants filed their Written Submissions. **Claimants Written Submissions.** 1. The Claimants contend that the amendments are necessary in order to enable the tribunal to determine the real issues in controversy between the parties and avoid the multiplicity of proceedings relating to the same subject matter and the same transactions. 2. Further, they pointed out that the proposed amendments are directly connected to the existing dispute and do not introduce new or inconsistent cause of action, rather, the amendment is an update of the pleadings to reflect the additional deductions which the 3rd Respondent had continued to effect, the disinterest of some former Claimants and the joinder of another party to reflect the present reality. 3. Finally, the Claimants argue that the Respondents will not suffer any prejudice if the amendments are allowed because they have an opportunity to Respondent to the amended pleadings. A refusal to allow the amendment would prejudice the Claimants because the Tribunal will determine the matter based on outdated pleadings which do not reflect the actual parties and the present financial Claims of the updated Claimants. **Issues** 1. After considering the Claimant’s Application, the Grounds contained therein which are Supported in the Affidavit of Peter Kanyi plus their Written Submissions, and after consideration of the file records during several mentions dates in the past, two (2) issues emerge for the tribunal’s determination. 2. **Whether the Application for leave to amend their pleadings including their Statement of Claim by the Claimants is merited or not.** 3. **What orders on costs should be provided for?** **Analysis and Determination.** 1. **Whether the Application for leave to amend their pleadings including their Statement of Claim by the Claimants is merited or not?** 2. The gist of Amendment of pleading with leave of the Court/Tribunal is clearly provided under Order 8, Rule 3 which provide as follows: (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 sub rule (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.** 1. In the case of **Coffee Board of Kenya v Thika Coffee Mills Limited & 2 Others (2014) eKLR** these principles of amendment of pleadings were elaborated as follows; (a) Amendments should be allowed which are necessary for determination of the real controversies in the suit; b). The proposed amendment should not alter and be a substitute of the cause of action on the basis of which the original list was raised; c) Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of fact would not be allowed to be incorporate by means of amendments; d). Proposed amendments should not cause prejudice to the other side which cannot be compensated by means of costs; e). Amendments of a claim or relief barred by time should not be allowed; f) . No amendment should be allowed which amounts to or results in defeating a legal right to the opposite party on account of lapse of time; g). No party should suffer on account of the technicalities of law and amendment should be allowed to minimize the litigation between the parties; h). The delay in filing the petitions for amendment should be properly compensated by costs; i). Error or mistake, which is not fraudulent, should not be made the ground for rejecting the application for amendment of pleadings. 11. Guided by the above decision, the Tribunal notes that the Claimants proffered justifiable Grounds which are in sync with the law and the above principles in their application to seek leave to amend their pleadings**.** Despite service of the application and the draft amendment to the Respondents, the Respondents failure to respond or oppose the application is viewed to be acceptance that they are not opposed to the payers being sought by the Claimants. 12**.** Since the purpose of the Claimants’ Application is to seek leave to amend the pleadings, the Tribunal does not see any prejudice that would be caused to the Respondents if the leave is granted. Moreover, the Respondents will have an opportunity when the matter is scheduled for full hearing to challenge the amended Statement of Claim, the parties and any other point of law relating to this suit. For this reason, it is the view of the Tribunal that we should grant leave to the Claimants to amend the pleadings for the ends of justice to be made. 13. In light of the foregoing, the Tribunal finds that the Application herein dated 4th May 2026 is merited and hereby allowed on the following terms: i) Claimants are hereby granted leave to amend, file and serve their pleadings as proposed in the draft amendment of the statement of Claim within 14 days from the date of this ruling. ii) The 1st, 2nd and 3rd Respondents are granted 14 days to file and serve their Statements of Defence/Response within 14 days upon receipt of the amended Statement of Claim from the Claimants. iii) Mention to confirm compliance and Pretrial Directions on 23rd November 2026. iv) Cost of this application will be in the cause. Ruling signed, dated and delivered *virtually* at **Nairobi** this **28th** day of **August, 2026.** **Hon. J. Mwatsama Chairperson Signed** **28.8.2026** **Hon. Beatrice Sawe Member Signed 28.8.2026** **Hon. Fridah Lotuiya Member Signed 28.8.2026** **Hon. Paul Aol Member Signed 28.8.2026** **Hon. Michael Chesikaw Member Signed 28.8.2026** **Tribunal Clerk Jemimah**