https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6914

Uwemenye & 2 others v Ahmed (Commercial Case E713 of 2024) [2026] KEHC 6914 (KLR) (Commercial and Tax) (8 May 2026) (Ruling) Neutral citation: [2026] KEHC 6914 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E713 of 2024 MN Mwangi, J May 8, 2026 Between Jean Baptiste Uwemenye 1st Plaintiff Kevin Rakundo 2nd Plaintiff Ken Stella Teta 3rd Plaintiff and Elsaei Waseem Ahmed Ahmed Defendant Ruling 1.Before me is a Notice of Motion application dated 20th May 2025 filed by the plaintiffs pursuant to the provisions of Order 8 Rules 3(1) & 5, Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B & 3A of the Civil Procedure Act and all other enabling provisions of law. The plaintiffs pray for orders for leave to amend their plaint as outlined in the draft amended plaint annexed to their supporting affidavit, for the amended plaint to be filed and served within seven (7) days from the date of the order hereto and for the defendant and any intended defendants, to be granted leave to file any amended pleadings if they so wish. 2.The application is premised on the grounds on the face of the Motion, and it supported by an affidavit sworn on the same day by Mr. Jean Baptiste Uwemenye, the 1st plaintiff herein. Mr. Uwemenye averred that the plaint in this suit was filed on 28th November 2024, but they have since established that it does not accurately reflect the full nature and extent of the plaintiffs’ claim against the defendant. He deposed that they intend to join additional defendants and set out the complete scope of their complaint, as reflected in the draft amended plaint. 3.Mr. Uwemenye deposed that the proposed amendments will enable the true determination of the issues in controversy and are necessary for the Court to make a fair decision. He asserted that the Court has powers to allow such amendments at any stage of the proceedings on just terms, and that the proposed amendments will not prejudice the defendant or affect any rights accrued. He urged the Court to allow the proposed amendments in the interest of justice. 4.In opposition to the application herein, the defendant filed a replying affidavit sworn on 26th June 2025 by Mr. Elsaei Waseem Ahmed Ahmed, the defendant herein. Mr. Ahmed averred that while he does not oppose the plaintiffs being granted leave to amend their plaint, the draft amended plaint, if admitted as is, would cause prejudice to him and the proposed 4th & 5th defendants. He specifically opposed the removal of the 1st plaintiff, as all relevant transactions and negotiations, including the signing of Letters of Offer, were undertaken by him, thus his involvement in this suit is necessary for the just determination of the dispute in this suit. He however stated that he is agreeable to the addition of the proposed 1st & 2nd defendants, who have an ascertainable interest in these proceedings, as reflected in his counterclaim dated 10th February 2025. 5.Mr. Ahmed objected to the inclusion of the proposed 4th & 5th defendants, as they are strangers to this suit, have no stake in the Grand Premier Apartments development and for the reason that any interest they had under a Joint Venture Agreement with the proposed 2nd defendant, has already been realized or is in the process of being transferred. He further averred that the proposed 4th defendant passed away on 17th May 2024, and only her Estate could be sued. He urged the Court to allow the proposed amended plaint to be filed subject to retaining the 1st plaintiff as a party, deleting the 4th & 5th defendants, exempting them from the proceedings, and awarding costs of the application to the defendant. 6.In a rejoinder, the plaintiffs filed a further affidavit sworn on 24th October 2025 by Mr. Jean Baptiste Uwemenye, the 1st plaintiff herein. Mr. Uwemenye denied that his personal participation in this suit is vital to the determination of the issues, as the dispute primarily concerns the letters of offer issued by the intended 1st defendant to the 2nd & 3rd plaintiffs, and the intended 2nd defendant’s role as a selling agent and recipient of the funds. He asserted that his involvement in the negotiations or signing of the letters of offer does not make him a party to the contract. Mr. Uwemenye however agreed with the defendant that the intended 3rd & 4th defendants have no relevant stake in this suit and should therefore be excused from the proceedings herein. 7.The instant application was canvassed by way of written submissions. The plaintiffs’ submissions were filed on 24th October 2025 by the law firm of Mahmoud Gitau Jillo LLP Advocates, while the defendant’s submissions were filed by the law firm of Ombok & Owuor Advocates LLP on 18th November 2025. 8.Mr. Wafula, learned Counsel for the plaintiffs cited the provisions of Order 8 Rule 3(2) of the Civil Procedure Rules, 2010, and the case of Eastern Bakery v Castelino [1959] EA 461, and submitted that amendments before hearing should be freely allowed if they do not cause injustice, and that the introduction of a new case is permissible so long as it does not substitute a distinct cause of action. He stated that the defendant does not oppose the proposed amendments and that the draft amended plaint no longer includes the 3rd, 4th & 5th proposed defendants. 9.Counsel stated that the only contention is the defendant’s request to include Jean Baptiste Uwemenye as a plaintiff, which he argued is unjustified and irregular, as the plaintiff has no legal interest in the contracts underlying the suit. 10.Mr. Wafula maintained that this suit concerns the letters of offer issued by the intended 1st defendant to the 1st & 2nd plaintiffs, with the intended 2nd defendant receiving the purchase funds, and that the relief sought is specific performance. He relied on the principle of privity of contract as articulated by the Court of Appeal in the case of City Council of Nairobi v Wilfred Kamau Githua t/a Githua Associates & another [2016] KECA 649 (KLR), which provides that only parties to a contract may enforce or be bound by it, and that a third party has no legal interest. 11.Ms Mayanda, learned Counsel for the defendant submitted that the 1st plaintiff is central to the determination of the facts in issue, as he personally negotiated and signed the letters of offer, making him indispensable to the proceedings herein. Counsel argued that the proposed amendment is an attempt by the 1st plaintiff to abandon his claim and avoid cross-examination on critical matters such as the agreed price, amounts paid, and outstanding balances, thereby causing prejudice. To buttress these submissions, Counsel relied on the case of KK Lodgit Limited v Geminia Insurance Company Ltd & another [2021] KEHC 6048 (KLR). 12.Ms Mayanda stated that under Order 1 Rule 10 of the Civil Procedure Rules, 2010, substitution or addition of plaintiffs is permissible only where there is a bona fide mistake in naming the plaintiff, and it is necessary for determining the real matter in dispute. She contended that the 1st plaintiff is the true owner of the suit, having negotiated and executed the letters of offer and cannot be removed from these proceedings on the basis of any purported error or inadvertence. Analysis And Determination. 13.Upon consideration of the instant application, the grounds on the face of it and the affidavits filed in support thereof, the replying affidavit by the defendant and the written submissions by Counsel for the parties, the issue that arises for determination is whether the plaintiffs should be allowed to amend their plaint. 14.Amendment of pleadings with leave of the Court is provided for under Order 8 Rule 3 of the Civil Procedure Rules, 2010, which provides as hereunder –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 subrule (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. 15.The import of the foregoing provisions is that this Court has the discretion to allow amendments to pleadings for the purpose of determining the real questions in controversy or to correct any defect or error, on such terms as may be just, including costs. It is trite that this Court has the discretion to order for the amendment of any document pursuant to the provisions of Order 8 Rule 5(1) of the Civil Procedure Rules, 2010, which provides as hereunder –For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and, on such terms, as to costs or otherwise as are just. 16.It is now well settled that amendments prior to trial should be freely allowed provided that they do not cause injustice or prejudice to the opposing party which cannot be remedied by costs. In the case of Kassam v Bank of Baroda (Kenya) Limited [2002] 1 KLR 294, the Court laid down the factors to be considered when dealing with an application for amendment of pleading as hereunder: -a.The party applying is not acting mala fides;b.The amendment will not cause some injury to the other side which cannot be compensated by costs;c.The amendment is not a device to abuse the court process;d.The amendment is necessary for the purpose of determining the real questions in controversy between the parties and avoid multiplicity of suits;e.And that the amendment will not alter the character of the suit. 17.In the case of Joshua Kimani v Kiso Enterprises Ltd & 3 others [2020] eKLR, the Court stated as follows on amendment of pleadings: -The Learned Authors of Halsbury’s Laws of England, 4th Ed (Re-Issue), Vol. 36(1) at paragraph 76, state the following about amendments of pleadings: -“…The purpose of the amendment is to facilitate the determination of the real question in controversy between the parties to any proceedings, and for this purpose the Court may at any stage order the amendment of any document, either on application by any party to the proceedings or of its own motion.…The person applying for amendment must be acting in good faith. Amendment will not be allowed at a late stage of the trial if on analysis of it, it is intended for the first time thereby to advance a new ground of defence. If the amendment for which leave is asked seeks to repair an omission due to negligence or carelessness, leave to amend may be granted if the amendment can be made without injustice to the other side…” (Emphasis added). 18.Upon perusal of the draft amended plaint, it is evident that the plaintiffs seek to amend the plaint primarily to join additional defendants and to properly reflect the full scope of their claim. It is noteworthy that the defendant does not oppose the proposed amendments generally, but raises specific objections regarding the removal of the 1st plaintiff from the proceedings and the inclusion of the proposed 4th & 5th defendants. 19.The defendant asserted that the 1st plaintiff is central to the determination of the factual issues, as he personally negotiated and signed the letters of offer, and that his removal would result in prejudice. The defendant further averred that the proposed 4th & 5th defendants are strangers to the suit and any interest they held in the development under a Joint Venture Agreement has either been realized or is in the process of being transferred, and that the 4th defendant passed away. 20.This Court notes that while the 1st plaintiff claims that his involvement in negotiating the Letters of Offer does not make him a party to the contract thus his participation is not vital, the defendant has credibly demonstrated that the 1st plaintiff is inextricably linked to the key transactions at the heart of the dispute, including the agreed purchase price, amounts already paid, and outstanding obligations. Consequently, excluding him from the suit would risk prejudice to the defendant and impede the fair determination of the matter. 21.Additionally, pursuant to the provisions of Order 1 Rule 9 of the Civil Procedure Rules, a suit shall not fail merely because of the misjoinder or nonjoinder of parties, and the Court may adjudicate on the matter in controversy with respect to the rights and interests of the parties who are properly before it. This Court therefore finds that the 1st plaintiff will suffer no prejudice by his continued participation in this suit. 22.The plaintiffs agree with the defendant’s assertion that the intended 4th & 5th defendants have no discernible stake in this suit and ought to be excused from these proceedings. This Court therefore allows their exclusion from these proceedings. 23.In the end, this Court is satisfied that the proposed amendments are not only in tandem with the original cause of action but also crystalize the plaintiffs’ case, and they will facilitate the determination of the real question in controversy between the parties. This Court therefore finds that no injustice will be suffered by the defendant by joinder of the proposed defendants, save for the proposed 4th & 5th defendants. In the circumstances, this Court finds that it is in the interest of justice to allow the plaint,iffs to amend their plaint. 24.In the result, this Court finds that the application herein is merited, and it is allowed in the following terms -i.Leave is hereby granted to the plaintiffs to amend their plaint to join any additional defendants with a demonstrable interest and to correct any deficiencies in the pleadings within fourteen (14) days from today;ii.The 1st plaintiff, Jean Baptiste Uwemenye, shall remain a party to this suit;iii.The proposed 4th & 5th defendants shall be deleted from the draft amended plaint, as they have no relevant stake in the proceedings;iv.The defendant will amend his statement of defence within fourteen (14) days upon service; andv.Costs of the application shall abide the outcome of the main suit.It is so ordered. DATED, SIGNED AND DELIVERED AT KIAMBU ON THIS 8TH DAY OF MAY 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of :-Mr. Dadu h/b for Mr. Gitau for the plaintiffs/applicantsNo appearance for the defendant/respondentMs Julia – Court Assistant.