Mutua & 6 others (All suing on their own behalf & on behalf of 1000 others) v St Bakhita Schools Ltd & 4 others (Civil Case E084 of 2024) [2026] KEHC 7719 (KLR) (Civ) (4 June 2026) (Ruling)

Mutua & 6 others (All suing on their own behalf & on behalf of 1000 others) v St Bakhita Schools Ltd & 4 others (Civil Case E084 of 2024) [2026] KEHC 7719 (KLR) (Civ) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7719 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E084 of 2024 JN Mulwa, J June 4, 2026 Between Martin Mutua 1st Plaintiff Daisy Gathoni Mbugua 2nd Plaintiff Nelson Muhia 3rd Plaintiff Belinda Njeri 4th Plaintiff Mary Wanjiru 5th Plaintiff Judith Mulwa 6th Plaintiff Jairus Kutsuru 7th Plaintiff All suing on their own behalf & on behalf of 1000 others and St Bakhita Schools Ltd 1st Defendant St Bakhita daycare & Kindergarten Ltd 2nd Defendant St Bakhita Junior Secondary School Ltd 3rd Defendant St Bakhita Holdings Ltd 4th Defendant and Charles Otiang'a Owiti, Maxwell Embenzi Guvaha Catherine Wachera Kiboi (Being Chairperson, Secretary & Treasurer of St Bakhita Schools Parents Teachers Association) Interested Party Ruling (On motion dated 19/9/2025) 1.The Applicants (hereinafter the Plaintiffs) by their application dated 19/09/2025 sought orders from the court for leave to amend their Plaint in terms of an Amended Plaint annexed to the supporting affidavit as annexure “DGM -1” and the same be deemed as duly filed, as well as costs for the application and premised on provisions of Order 8 Rule 3 (3) and 5 (1); Order 51 Rule 1 of the Civil Procedure Rules (CPR), as well as Section 1A, 1B and 3A; and 100 of the Civil Procedure Act (CPA) in bringing the application and supported by grounds on its face together with the affidavit sworn on an even date by Daisy Gathoni Mbugua, the 2nd Plaintiff herein. 2.The gist of the Plaintiffs application as may be garnered from the affidavit material placed before the court is that it has become necessary to amend the Plaint as earlier filed, to widen the scope of the reliefs sought against the Respondents(hereinafter the Defendants), for the purpose of determining the totality of questions in controversy between the parties further positing that the intended amendments will not introduce any new facts or new cause of action, that if not allowed, they will suffer substantial loss, hardship and grave injustice. 3.The Application is opposed by the Respondents (hereinafter the Defendants), by a replying affidavit sworn on 10/11/2025 by the Director of the Defendants, Felista Muthoni Mutinda. It is her deposition that the main suit, having been anchored on prayer 1 of the Plaint, has since been overtaken by events, leaving nothing more for the court to adjudicate on, and therefore the instant motion is an afterthought, an abuse of court process, misconceived and ought to be dismissed. 4.Further it is deposed that by the application under review, the Plaintiffs proposed new and fresh declarations seeking to elevate the Parents Teachers Association (PTA) to a mandatory decision making body, which is but purely advisory and cannot override the statutory authority of the Board of Directors, adding that the Basic Education Act provides a regulated public service, rather than a commercial transaction for goods whereas the Plaintiffs characterization of the dispute between the parties hereto as a consumer dispute is misplaced legally and factually untenable as the substantive Basic Education Act governs the issue under dispute. 5.Finally, it is urged that this court having considered in its previous orders in its ruling dated 15/07/2024 that the suit be fast-tracked and be heard and concluded on priority basis within 120 days, from the said date 15/07/2024, and the Plaintiffs having failed to comply with the said directions and orders, the said orders were expressly limited to the period of stay of execution of the fees structure for the period 2024/2025 academic year nor beyond the express duration. 6.Parties were directed to urge their respective positions by way of written submissions. Only the Interested Party failed to comply. Plaintiffs Submissions 7.In their submissions dated 9/12/2025, the Plaintiffs postulated that the guiding principles under the power of court to allow amendments is necessary for determination of the real questions in controversy between parties under Order 8 and 51 CPR at anytime so long as the intended amendments do not cause injustice or prejudice to the other party that cannot be compensated by an award of costs. The court of Appeal cases of Trust Bank Ltd & 4 Others (2000] eKLR; Elijah Kipngeno AraP Bii Vs. Kenya Commercial Bank Ltd [2013]eKLR were cited in support. 8.Additionally, the Plaintiffs cited the decision of Joseph Ochieng & 2 others v. First National bank of Chicago [1995] eKLR to state that courts primary objective is to decide the rights of the parties, not to punish them for mistakes in their pleadings; to wit, the proposed amendments clarify the statutory frameworks governing the dispute bringing into sharp focus the Plaintiffs rights as consumers under the Consumer Protection Act and the Fair Administrative Action Act. 9.It is upon the above submission, that thePlaintiffs intended additional reliefs are grounded upon, arguing that should the application be refused, they would suffer substantial loss, hardship and grave injustice. Defendants Submissions 10.The Defendants submissions are dated 10/02/2026. While acknowledging the courts wide discretion to permit amendments to pleadings, they contend that such discretion ought not be exercised to occasion prejudice and or injustice to the opposing party, that the proposed amendments introduce new and inconsistent causes of actions expanding the dispute beyond the originally contemplated causes which is impermissible in law and contrary to settled principles governing amendments to pleadings. 11.It is the Defendants submission that the intended amendments have been overtaken by events due to the unexplained delay, thereby undermining procedural fairness, frustrating the overriding objectives set out under Sections 1A, 1B &3A of the CPA. 12.Upon the foregoing, the Defendants postulated two (2) issues for the courts determination to wit;-1.Whether the proposed amendments should be allowed.2.Whether the proposed amendments would occasion prejudice to the Defendants. 13.To support their arguments, the Defendants called to aid provisions of Order 8 CPR and Section 100 CPA, and the decisions in Joseph Ochieng & 2 others Trading as Aquiline Agencies v. First National Bank of Chicago (Supra); and Central Kenya Limited v. Trust Bank Ltd (Supra) equally cited by the Applicants. 14.The Defendants further submit that while courts would ordinarily allow amendments to pleadings, they will decline to allow when they fundamentally alter the nature of the suit, introduce new inconsistent causes of action and occasion prejudice to the opposing party, while calling to aid the decision in Family bank Ltd v Mak’ojuando [2024] KEHC 6529 (KLR). 15.It is the Defendants submission that the original plaint clearly shows the main claim, as anchored on prayer 1 that sought injunctive orders restraining the Defendants from implementing fees increments payable for Term II of year 2024, which has since been overtaken by events as the stated period in question lapsed, that the Plaintiffs’ seek re-litigation of the matter by introducing new reliefs, and causes of action that would materially alter the nature of the suit. 16.By further submission, the Defendants say that the proposed amendments introduce new legal theories, attempts to subvert the governing statutory framework in education which is inconsistent with established jurisprudence to reshape the original case under the guise of amendments. 17.Additionally, the Defendants submit that the proposed amendments if allowed will cause grave prejudice and harm to the Defendants citing the decision of Chepyegon v. Joshua Cheburet Kiptum t/a Josesta Enterprises (civil Appeal E 014/2023 [2024] KEHC 2676[KLR] as well as Joseph Ochieng & 2 Others (supra) wherein it was observed that the conduct of the plaintiff case has been so slovenly that it would be impossible now to have a fair trial if the proposed amendments were allowed. 18.Based on the above submissions, it is the Defendants summary conclusion that the application is ill advised, not brought in good faith, is made to prolong conclusion of the suit, is unnecessary, legally untenable, is prejudicial to the Defendants made to increase costs and an administrative disruption of the Defendants institutions and must be dismissed. Issues for determinationa.Whether the Plaintiffs application dated 19/09/2025 should be allowed?b.Who shall bear cost of the application Whether the plaintiffs’ application should be allowed. 19.The Plaintiffs rely on Sections 1A, 1B and 3A of the CPA. 3A reserves the inherent powers of the court to make such orders as may be necessary for ends of justice to prevent abuse of court process. Courts' inherent powers have been judiciously addressed by the Court of Appeal in the case of Rose Njoki Kingau & Another v Shaba Trustees Limited & Another [2010] KECA 87 (KLR) among others. 20.Coronally to the above, it is trite that parties are bound by their own pleadings, that submissions cannot replace evidence that tends to be at variance with the pleadings, that they cannot at all levels constitute evidence, that cases are decided on evidence and finally that submissions are generally a “marketing language” as held in the Court of Appeal case of Daniel Toroitich Arap Moi V Mwangi Stephen Muriithi & Another [2014] eKLR, and in the Estate of Mutta Thirikwa (deceased) [2025] KEHC 6818 (KLR) and Charles Mwangi v. Muniu Margaret Ndung’u [2026] KECA 985 (KLR). 21.With the above in reserve, I find it necessary to state the purport of the legal provisions cited by the Plaintiffs and bring them into perspective. Sections 1A & 1B- CPA provide the objectives and duty of the court as to facilitate the just expeditious and proportionate affordable resolution of civil disputes at a cost affordable by the parties. 22.That said, I want to revisit the orders this court issued on 15/07/2024. They were directed to Defendants jointly and severally in terms of Prayer 4 of the Plaintiffs Notice of Motion dated 18/04/2024; which read thus;4.That pending the hearing and determination of this suit, there be an order of injunction restraining the Defendants/Respondents……from implementing the decision to increase fees as contained in invoices for Term II of year 2024 dated 28/03/2024. 23.The said impugned notice by way of a Newsletter dated 28/03/2024 issued by the 4th Defendant captioned “Review of fees for 2024-2025 academic Year.” The court noted that the said Newsletter gave the parents very short period for the intended increase that would prejudice, cause irreparable harm and damage and for that, the balance of convenience favoured the Plaintiffs from which findings the Orders dated 15/07/2024 were issued suspending the intended fees increment for the relevant period, Term II of year 2024/2025 Academic Year. 24.At par. (e) of the court order of 15/07/2024, the court directed that the suit be fast tracked and be heard and concluded on priority basis due to its urgency and in any event within 120 days from the date of this ruling (emphasis added). 25.Orders of temporary injunctions are time bound. Provision of Order 40 Rule 6 CPA provides:Where a suit in respect of which an interlocutory injunction has been granted is not determined within a period of twelve months from the date of the grant, the injunction shall lapse unless for any sufficient reason the court orders otherwise. 26.The impugned orders were issued on 15/07/2024. Without a doubt, the temporary orders lapsed twelve months thereafter thus 15/07/2025. The Court was never moved by any of the parties for extension. As it is, there are no injunctive orders directed to the Defendants, of whatever nature, to comply with all having been overtaken by events. What does this mean, in respect to the Plaintiffs case? 27.By their Plaint, the Plaintiffs reliefs at Paragraph 32 are clear to all, and sundry;i.A permanent injunction to restrain the Defendants from implementing payment of the increased fee payable to the Defendants as contained in the invoices issued for Term II of the year 2024.ii.…..iii.A declaration do issue that the Notice for increment of school fees dated 28/03/2024 issued to the Plaintiffs by the 4th Defendant is illegal, unlawful and is not binding to the Plaintiffs.iv.A declaration do issue that the decision by the 1st, 2nd 3rd Defendants to increase fees through the invoices issued for Term II of year 2024 before the expiry of two years is in breach of the Plaintiffs legitimate expectations.v.An order do issue to the Defendants to issue the Plaintiffs with fresh invoices for Term II of year 2024 which do not reflect the arbitrary school fees increases. 28.I took the liberty to quote the relevant plaintiffs prayers verbatim in their plaint for purpose of clarity as these reliefs form the basis of the additional reliefs sought in the instant motion. Notably, the Plaintiffs seek to add declarations stated at (vi), (Vii) (Viii) (ix) and (x) as seen in the draft. 29.Whereas the court under Order 8 CPR is empowered to exercise its discretion to allow amendments of pleadings, this power is not open-ended. The amendments, if allowed ought not introduce fresh causes of action, unrelated to the original causes as they may cause injustice or prejudice to the other party that may not be compensated by an award of costs. 30.In the case of central Kenya Ltd v. Trust Bank & 4 Others [2001] eKLR, Elija Kipngeno Arap Bill v. Kenya Commercial Bank Limited (2013) eKLR the general rule is that amendment of pleadings ought to be allowed freely as may be necessary for determination of the real question in controversy provided there is no injustice to the other side. 31.Here, what is the real issue and or dispute in this suit?I have stated the cause(s) of action as stated in the Plaint. I strongly believe that the controversy between the parties revolved around the notice by way of newsletter date 28/03/2024 issued by the Defendants to the Plaintiffs requiring them to increase and pay the increased school fees for the period Term II of year 2024. That is where the dispute started and ended. 32.In my considered view, and juxtaposed with the original pleadings (plaint) the Plaintiffs suit was limited to the period Term II of year 2024 academic period. Why do I say so? At their prayer (i), of the Plaint, the Plaintiffs sought a permanent injunction restraining the Defendants from implementing the increased fee as stated in the Notice/newsletter issued for the year 2024. Interestingly, in the application, the Plaintiffs sought permanent injunctive orders that would not ordinarily be issued at an interlocutory stage of a case. 33.Upon inter partes hearing of the application dated 18/04/2024, a temporary injunction was granted to the Plaintiffs and as per prayer I of their motion, the court suspended implementation of the decision to increase fees as contained in the invoice for Term II of year 2024 pending hearing and determination of the suit.Here, it is to be noted that the court, being mindful of the urgency and nature of the dispute, ordered and directed that the suit be heard and concluded within 120 days. This was an order to be obeyed, notobeyed; not a suggestion. This was informed by the fact that the timelines for determination of the suit was to lapse at the end of the Term II of year 2024, and further the court being aware that the life of a temporary order of injunction as provided at order 40 Rule 6 CPR would lapse unless the suit is determined within a period of twelve months unless otherwise extended by a court order upon application. Indeed that never happened. 34.Court orders are not made in vain. Clearly, the Plaintiffs having obtained the orders they desired, went to sleep and failed to move the court for the next stage, hearing of the suit, precisely before close of the year 2024. ! That not being enough to awakenawoken them, the Plaintiffs they continued costly in their ssleepleeping upto 19/09/2025 when they woke to the realization that therethee was some unfinished business with the court. 35.It is further instructive to note that court orders are not made in vain, and failure to comply hashave adverse consequences.In the case of Econet Wireless Kenya Ltd v. Minister for Information and Communication of Kenya & Another held that:The court In“It is essential for the maintenance of thefo the rule of law and order that the authority and dignity of courts are upheld at all times, otherwise the court would be exposed to ridicule.”The same holding has been upheld in numerous superior courts decisions, likewise in the Republic vs. Nairobi City County Ex parteExparte David Ndambuki [2015] U Hanl vehicle Ltd v. Kiambu Dandora Farmers Co. Ltd & 5 others [2020] eKLR, similar orders were rendered. 36.While it is within the courts powers to allow amendments to pleadings, such amendments will be declined where they fundamentally alter the nature of the suit, or introduce new or inconsistent causes of action or where would cause prejudice to the other party. 37.Considering the nature of the proposed amentmentsLooking at the proposed amendments at the draft-amended plaint, it is evident that if allowed they Plaintiffs are bound to change the trajectory and or the cause of action from the original cause. In the first instant, the Plaintiffs they have not explained the undue and unreasonable delay in returning to court. 38.As stated in the case of family Bank Ltd v. Mak’ojuando [2024] KEHC 6559 KLR an amendment that intends to rewrite the original pleadings diverts the courts course from the seat of justice. The real question in this suit hence as limited to the Invoice/Newsletter dated 23/03/2024 and Defendant school fee increment for the period Term II of year 2024. 39.I fully agree with the Defendants that the above question was fully dealt with in the court’s ruling issued on 15/07/2024 that ruling remains in place and in force having not been set aside, varied or appealed from. The real and main dispute in the suit has since been settled in the said ruling; to be persuaded otherwise would be to resurrect otherwise settled issued. 40.Amendments to a pleading ought to be brought to court in a timely manner, as inordinate delay would prejudice the other party. In the case Trishcon Construction co. Ltd v. Landmark Holdings Ltd [2016] KECA 155 (KLR) the Court of Appeal rendered-“That amendments must be timeously appalled for….. We think, that alone would disentitle the appellant of court’s discretion, as it would be prejudiced to the respondent” 41.With the above reserve, it is necessary to state the rider to the orders of 15/07/2024 wherein the court ordered that that suit should have been heard and concluded within 120 days of the order. Clearly, the Plaintiff failed to comply. In my considered view, there is no case that is pending hearing and determination, courtesy of the court orders of 15/07/2024. 42.Firstly, the orders being sought now and at the inception of the case have been overtaken by events to wit, the Plaintiffs wishes and prayers in the plaint were duly granted to them. 43.Therefore, my belief is that the instant application was not brought in good faith. None has been exhibited. Coupled with the undue delay, and the view and inconsistent cause of action sought, to be introduced by the amendments, if allowed, would change the cause of action to a new suit all together which this court is not persuaded to do as it would be diverting from the objective and its duty as aforestated thus;Section 1A of the Civil Procedure Act (CPA) to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes;Section 1B – the just determination of proceedings, efficient, disposal of court proceedings at a cost affordable by the respective parties; andSection 3A – that nothing in this act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. 44.For the foregoing, the court finds no merit in the plaintiff’s application dated 19/09/2025. It is dismissed with each party to bear their own costs of the application. DELIVERED DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF JUNE 2026.………………………JANET MULWA.JUDGE