https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4325

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELCLC NO. E492 OF 2025** **ROMENA WITABA……......................................PLAINTIFF/APPLICANT** **VERSUS** **ROBINSON NYANGENA MOGENI….….1ST DEFENDANT/RESPONDENT** **JOSHUA ONCHWARI………..........…….2ND DEFENDANT/RESPONDENT** **RULING** 1. Before this court for determination is the notice of motion dated 1st December, 2025 filed by the plaintiff/applicant and it is expressed to be brought under **Order 8 Rule 3** of the **Civil Procedure Rules** seeking the following orders:- 2. ***That the plaintiff/applicant be granted leave to amend her application and pleadings as set out in the draft amended application and pleadings herein annexed.*** 3. ***That the draft amended application and pleadings be deemed as duly filed and served.*** 4. The application is premised on the grounds *inter alia* that the proposed amendments are intended to bring before this court the rightful party in the matter so that the suit is determined on substantive merits. The application is further supported by the affidavit of Rahab Mwongeli Kyenze, the learned counsel for the plaintiff/applicant sworn even date. She deposed that the plaintiff/applicant filed pleadings dated 29th September, 2025 and that the rightful party to be sued is alliance premier auto group limited, a company which had leased the suit property from the 2nd defendant/respondent. The learned counsel deposed that they realized the error in suing the 1st defendant/respondent in his personal capacity and wish to substitute the name of the said defendant/respondent with alliance premier auto group limited. 5. The 1st defendant/respondent filed grounds of opposition dated 13th March, 2026 challenging the application on the following grounds:- 6. ***That the error in suing the wrong party in the instant case is not a mere procedural technicality capable of being cured under Order 8 Rule 3 of the Civil Procedure Rules, as the mistake goes to the root of the suit.*** 7. ***That the suit was initially directed to a natural person and the amendment now sought seeks to bring in a separate legal entity, alliance premier auto group limited which fundamentally alters the character and substratum of the suit.*** 8. ***That the amendment sought amounts to instituting a new suit through the back door and cannot sanitize a defective cause of action, consequently, the application is a non-starter and the applicant has not met the threshold required under Order 8 Rule 3 for the grant of such orders.*** 9. ***That in any event, the supporting affidavit to the notice of motion dated 1st December, 2025 contains depositions on matters of fact which have been sworn by an advocate instead of the plaintiff and as such the same is improper and ought to be struck out.*** 10. ***That this honourable court’s jurisdiction was never properly invoked by the plaintiff from the word go and the entire suit herein is defective having been initiated against the wrong person and the same is for striking out in limine.*** 11. The learned counsel for the plaintiff/applicant filed a supplementary affidavit sworn on 5th March, 2026 in response thereto. The learned counsel deposed that the 1st defendant/respondent is a sole director and shareholder of alliance company limited, and the error in suing the 1st defendant/respondent in his personal capacity does not go to the substance of the claim as it is a matter of replacing the natural person with the company. Further, that the substitution will not alter the substratum of the suit, nor will it cause any prejudice to the parties. 12. The application was canvassed through written submissions. The plaintiff/applicant filed written submissions dated 5th March, 2026. The 1st defendant/respondent filed written submissions dated 13th March, 2026 while the 2nd defendant/respondent filed written submissions dated 23rd March, 2026. I have considered the application, the replies thereof and the written submissions filed by the parties. The issue for determination is *whether leave should be granted to the plaintiff/applicant to amend the pleadings*. 13. **Section 100 of the Civil Procedure Act** provides as follows:- **“The court may at any time, and on such terms as to costs or otherwise as it may think fit, 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 8, Rules 3** and **5 of the Civil Procedure Rules**, provides 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 subrule (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 subrule if it thinks just so to do.** **(3) . . . . .** **(4) . . . . .** **(5) An amendment may be allowed under subrule (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. The above provisions of the law demonstrate that indeed amendment of pleadings may be allowed at any time of the suit. The court however has discretion to either allow or deny the amendment hence the need to seek leave. In making this decision, the court needs to look at all circumstances of the matter. If the amendment will greatly prejudice the other party so as to lead to an injustice, then the amendment may be disallowed. But if no injustice is going to be caused to the other party, the court may allow the amendment with necessary directions. Having said that, it is preferable that applications to amend come early in the proceedings. Late amendments are more likely to cause injustice as compared to an amendment coming before the hearing of the suit commences. 2. In the case of **Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] KECA 367 (KLR),** the Court of Appeal stated as follows:- ***“The overriding consideration in applications for such leave is whether the amendments are necessary for the just determination of the controversy between the parties. Likewise mere delay is not a ground for declining to grant leave. It must be such delay as is likely to prejudice the opposite party beyond monetary compensation in costs. The policy of the law is that amendments to pleadings are to be freely allowed unless by allowing them the opposite side would be prejudiced or suffer injustice which cannot properly be compensated for in costs.”*** 1. The plaintiff/applicant contends that the purpose of the amendments is to ensure that the correct party is sued in this matter i.e. alliance premier auto group limited instead of the 1st defendant/respondent. The plaintiff/applicant stated that the 1st defendant/respondent is a sole director and shareholder of the company, and while this should be right party to sue, she sued the natural person hence the amendments. On the other hand, the 1st defendant/ respondent contends that the amendment seeks to bring in a separate entity which fundamentally alters the character of the suit. Interestingly, the 1st defendant/respondent did not deny that he is a director and shareholder of the company. A perusal of the proposed amendments only seeks to introduce the correct party which is the company instead of the natural person. There is no fundamental alterations to the pleadings as alleged. 2. In my view, the proposed amendments have been brought early in the proceedings, and the same is reasonable to enable the court properly adjudicate the dispute between the correct parties. From the above, I find merit in the notice of motion 1st December, 2025 and it is allowed as follows:- 3. ***The plaintiff/applicant is hereby granted leave to amend her application and pleadings as set out in the draft amended application and pleadings herein annexed.*** 4. ***The draft amended application and pleadings are deemed as duly filed upon payment of the requisite filing fees within 7 days from the date hereof.*** 5. ***Upon payment of filing fees, the plaintiff/ applicant to serve the same upon the defendants/respondents within 3 days.*** 6. ***Costs in the cause.*** It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY** **THIS 9TH DAY OF JULY, 2026.** **HON. MBOGO C.G.** **JUDGE** **09/07/2026.** ***In the presence of:*** *Ms. Benson Agunga - Court assistant* *Ms. Kyenze for the Plaintiff/Applicant* *Ms. Adhiambo for the 2nd Defendant/Respondent*