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Court of AppealAllowedCivil Appeal No. 173 of 2004

Stephen Boro Githua v Family Finance Building Society, George Mwangi Hiuki, Muiban Agencies & Land Registrar, Nairobi

Court of Appeal of Kenya
23 January 2015
1,668 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that correcting your claim's figures is allowed when it helps the court decide the real dispute fairly.

What this practically means

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Executive summary

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This Court of Appeal judgment (MWERA, OUKO & MURGOR, JJ.A) allowed an appeal against a ruling of Kasango, J. (High Court, Nairobi, H.C.C.C. No. 360 of 2003, dated 21 June 2004) refusing the appellant leave to amend his plaint and to maintain the status quo. The appellant sought to amend his plaint to plead that he borrowed Sh.3.5 million from the 1st respondent, Family Finance Building Society, rather than the Sh.7.5 million originally pleaded, having discovered this from documents obtained after filing suit; LR No.218/278, New Huruma Estate was pledged as security. The High Court dismissed the status quo prayer early on and refused the amendment, reasoning that the amendment would raise a claim inconsistent with previous pleadings, relying on the appellant's affidavit in an earlier chamber summons and on Order VI rule 6(1) of the Civil Procedure Rules. The Court of Appeal held the Judge erred in two respects: she applied a provision of law unrelated to the substance of the application, which was brought under the repealed Order VIA rule 3(3) (now Order 8); and she treated the contents of an affidavit as a pleading, when an affidavit is evidence on oath and only pleadings - summons, petition, plaint, defence, reply or counterclaim - are subject to amendment. Reiterating that amendments contradicting prior pleadings, causing uncompensable prejudice, or intended to delay trial should be refused, but that amendments placing a full and clear case before the court ought to be allowed, the Court found the intended amendments were not inconsistent with the original claim. The appeal was allowed, the impugned orders set aside, leave to amend granted within 30 days, and costs of the application awarded to the appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in refusing leave to amend the plaint
  2. 2.Whether the Judge applied the correct provision of law in determining the amendment application
  3. 3.Whether the contents of an affidavit sworn in a chamber summons constitute a pleading for purposes of amendment

Key legal issues

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01

Correct legal basis for determining an application for leave to amend pleadings

Holding

The High Court erred by applying Order VI rule 6(1), a provision unrelated to the substance of the chamber summons brought under Order VIA rule 3(3), instead of the amendment provisions.

Reasoning

The application before Kasango, J. was brought under the now repealed Order VIA rule 3(3) (now Order 8) seeking to amend the amended plaint. The Judge instead considered Order VI rule 6(1) on inconsistent allegations. The Court of Appeal found the provision adopted was apparently not related to the substance of the application, amounting to proceeding on a wrong provision of law, warranting appellate interference.

p. 3
02

Whether affidavit contents constitute a pleading

Holding

An affidavit is evidence on oath, not a pleading; the Judge erred in treating the appellant's deposition that he borrowed Sh.7.5 million as a pleading inconsistent with the plaint.

Reasoning

The Judge dismissed the amendment application because the appellant's affidavit in an earlier chamber summons stated he borrowed Sh.7.5 million. The Court held that a pleading includes a summons, petition, statement of claim, defence, reply or counterclaim, all amendable, whereas an affidavit is evidence. Construing affidavit contents as a pleading was an error of law.

p. 3
03

Whether the intended amendment was inconsistent with the original claim

Holding

The intended amendments were not inconsistent with the original claim, so leave to amend ought to have been granted.

Reasoning

The appellant discovered from documents obtained after filing suit that he borrowed Sh.3.5 million, not Sh.7.5 million as pleaded. The Court found the amendments were geared to placing a full and clear case before the court for effectual determination on the merits, and the respondents would suffer no prejudice since they too could amend their defences and evidence would unravel the true position at trial.

p. 3

Legal principles established

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  • Amendments that contradict previous pleadings, are intended to delay a fair trial, or would cause prejudice not compensable by costs should not be allowed.
  • Amendments geared to placing a full and clear case before the court for determination on the merits ought to be allowed.
  • The contents of an affidavit constitute evidence on oath and do not constitute a pleading.

Court orders

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  1. 1.Appeal allowed
  2. 2.Orders of the High Court refusing leave to amend set aside
  3. 3.Appellant granted leave to further amend his plaint within 30 days and to file and serve the amended plaint for hearing in the High Court
  4. 4.Respondents to pay the costs of the application to the applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
William Ouko
W. OUKOJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 360 of 2003
Jurisdiction invoked
First appellate jurisdiction over an appeal from the High Court (Civil Appeal jurisdiction; no specific constitutional provision cited)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

amendments to pleadings which contradict previous pleadings in the same suit or are intended to delay a fair trial or are likely to prejudice the other party to an extent that damages cannot compensate that party, should not be allowed
p. 2Limits on amendment of pleadings
where intended amendments are geared to place a full and clear case before the court so that it is effectually and finally determined on its merits, ought to be allowed for that is the way to do justice
p. 2Purpose of amendments
As is trite law the contents of an affidavit constitute evidence on oath. An affidavit does not constitute a pleading.
p. 3Distinction between affidavit and pleading
we allow this appeal, set aside the orders in question. The appellant prayed that he proceeds to amend his plaint further and that we grant. He will further amend his plaint in the next 30 days file and serve the same for the hearing of the suit in the High Court.
p. 3Final orders and disposition
The respondents are ordered to pay the costs of this application to the applicant.
p. 3Costs order

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Stephen Boro Githua v Family Finance Building Society, George Mwangi Hiuki, Muiban Agencies & Land Registrar, Nairobi", Case Analysis (2015). Civil Appeal No. 173 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/982/eng@2015-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.