https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11951

 **REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **MILIMANI COMMERCIAL COURTS** **HCCOMM NO. E245 OF 2023** **AL AMIN HUSSAN OTHMAN…………………………….…..…PLAINTIFF/APPLICANT** **VERSUS** **AFRICAN BANKING CORPORATION** **LIMITED** **(ABC LTD)………………………….……...…1ST DEFENDANT/RESPONDENT** **JAMES ANDREW PHILLIPOWSKY ALIAS** **ERICK NJUMWA MNGOLA JUNIOR…………….…2ND DEFENDANT/RESPONDENT** **ERICK NJUMWA MNGOLA JUNIOR…………...………PROPOSED 3RD DEFENDANT** **RULING** 1. By a Notice of Motion dated 13th June 2025, brought under Order 1 Rules 9 and 10, Order 8 Rule 3, Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010, and Sections 1A, 1B and 3A of the Civil Procedure Act, the Plaintiff/Applicant, seeks leave to amend his Plaint dated 29th May 2023 and to join Erick Njumwa Mngola Junior as the 3rd Defendant. 2. The application is supported by the Applicant’s own affidavit sworn on 13th June 2025, annexing the Draft Amended Plaint. 3. When the matter came up for hearing, learned counsel for the 1st Defendant/Respondent informed the Court that the 1st Defendant does not oppose the application, and no response was filed on its behalf. The application therefore fell for determination on the strength of the Plaintiff/Applicant’s uncontroverted affidavit and the written submissions dated 17th April 2026. 4. The Applicant’s case, as deponed to, is that he instituted this suit on 2nd June 2023 against the 1st and 2nd Defendants only, the Plaint having been drawn by his then advocates who erroneously failed to enjoin Erick Njumwa Mngola Junior. 5. The Applicant avers that the 2nd Defendant is alleged to have assumed the identity of the said Erick Njumwa Mngola Junior in order to fraudulently procure Kshs. 27,000,000 from him in a purported sale of L.R. No. 12882/21 (I.R. 37728), and that the proposed 3rd Defendant, whose real identity is central to the pleaded particulars of fraud, and who is a complainant/subject in the related criminal proceedings at Milimani Chief Magistrate's Court Criminal Case No. 1124 of 2020, is a necessary party without whom the questions in controversy cannot be effectually and completely settled. 6. The Applicant contends that the amendment will occasion no prejudice to the Defendants, who remain free to amend their defences accordingly. 7. This Court’s jurisdiction to grant the orders sought is founded in Section 100 of the Civil Procedure Act, which empowers the Court, ***"at any time… [to] amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding."*** 1. Order 1 Rule 10(2) of the Civil Procedure Rules similarly permits the Court, at any stage of the proceedings, to order that a person *"whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added"* as a party, while Order 8 Rule 3(1) confers on the Court a broad discretion, on such terms as may be just, to *"allow any party to amend his pleadings"* at any stage of a suit. 2. Courts have in many instances elaborated on how this discretion is to be exercised. In **Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013] eKLR**, the Court of Appeal, adopting the principles in ***Joseph Ochieng & 2 Others v First National Bank of Chicago*,** held that ***"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,"*** 1. The proviso to the above is that the amendment should be not immaterial, useless, or one that would transform the suit into an action of a substantially different character. 2. In **Central Kenya Limited v Trust Bank Limited (2000) 2 E.A. 365**, the Court of Appeal held that a party may amend ***"as may be necessary for determining the real question in controversy… provided there has been no undue delay… no new or inconsistent cause of action is introduced… and the amendment can be allowed without injustice to the other side."*** 1. On the specific question of joinder, in **African Airlines International Ltd v Eastern & Southern African Trade & Development Bank [2017] eKLR**, it was observed that: ***amendment of pleadings and joinder of parties is permitted by law and it can be done at any stage… [and] should be allowed freely, if the party sought to be joined is necessary in order to enable the court to efficaciously, effectively and completely…*** determine the real issues in dispute. 1. Applying these principles to the facts before me, I am satisfied that Erick Njumwa Mngola Junior is a necessary party within the meaning of Order 1 Rule 10(2), his identity being at the very core of the fraud alleged and pleaded against the 2nd Defendant, and his presence being indispensable if this Court is to effectually and completely adjudicate upon the questions in controversy. 2. The identity issue was troublesome to the Court in the description of the parties where the said proposed 3rd Defendant Erick Njumwa Mngola Junior is said to be the alias of the differently named 2nd Defendant and also being added separately as a 3rd Defendant. Is there a possibility that the Plaintiff may be having the same Defendant being named twice or having a ghost as the 2nd Defendant? 3. This trouble was washed away from the Court with the understanding that there are opportunities for the Plaintiff to make out their case without having hurdles placed in their path at this early stage of the suit. To the extent that this does not appear to be a case of the Plaintiff shooting in the dark but having a train of thought of the alleged fraud, and the knowledge that the said facts will need to be proved at trial, the Court is satisfied. 4. Further, the proposed amendment does not introduce a new or inconsistent cause of action; it merely extends the existing cause of action in fraud to a party whose omission from the original Plaint is attributed to an error on the part of the Applicant's previous advocates. 5. The application was brought before the hearing of any evidence, is not shown to be made in bad faith, and with no other party having filed grounds of opposition. There is nothing on record to suggest that the Defendants stand to suffer any prejudice that an award of costs, or the liberty to amend their defences, cannot cure. 6. In the premises, I find merit in the application dated 13th June 2025 and allow it in terms of prayers 2, 3, 4 and 5 thereof. Consequently, I order as follows: 1. *The Plaintiff/Applicant is granted leave to amend the Plaint dated 29th May 2023 in terms of the Draft Amended Plaint annexed to the application and marked “AAHO-1”, to enjoin Erick Njumwa Mngola Junior as the 3rd Defendant.* 2. *The Amended Plaint shall be deemed as duly filed and served upon the Defendants upon payment of the requisite filing fees.* 3. *The Defendants shall be at liberty to file and serve their respective amended Defences, if any, within twenty one (21) days of service of the Amended Plaint.* 4. *The costs of the application shall be in the cause.* It is so ordered. **DATED and DELIVERED at NAIROBI this 28th day of July 2026.** **MURUNGA, J**