Ethics & Anti-Corruption Commission v Nesco Services Limited & 3 others (Environment and Land Case E211 of 2023) [2025] KEELC 6927 (KLR)

b. The entire suit violates the provisions of sections 34 and 35 of the Advocates Act, and no amendment can remedy the consequences of failing to endorse the name of the drawer of the verifying afidavit accompanying the plaint. 4. Parties have filed written submissions, which I have read and considered. 5. The key issue before the court is whether the application is merited. 6. Section 100 of the Civil Procedure Act states 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.” 7. 8. Order 8 Rule 5 of the Civil Procedure Rules states as follows: “ (1) 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. (2) This rule shall not have efiect in relation to a judgment or order.” Further, Halsbury’s Laws of England, 4th Edition (re-issue) Vol.36(1) at Paragraph 76 sets out the requirements for an amendment thus; “ …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.” 9. In the case of Eastern Bakery vs Castelino (1958) EA 461, Sir Kenneth O’Conner, President of the predecessor of this Court stated that; “ It will be suficient … to say that amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side and that there is no injustice if the other side can be compensated by costs.” 10. Similarly, in the case of Central Kenya Ltd vs Trust Bank & 4 others Civil Appeal No. 222 of 1998, addressed the underlying principle in amendment of pleadings and joinder of parties to be; “ all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs.” 11. I have reviewed the record and observe that My Brother Mr. Justice Mwangi has extensively expressed his opinion on the issue of the validity or otherwise of the plaint in his ruling delivered on 24/9/24. The court has been informed that the 1st and 2nd Respondents have lodged an appeal on this matter at the Court of Appeal, and I must exercise restraint to avoid causing embarrassment to the appellate https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6927/eng@2025-10-09 2

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court. Importantly, there is no order staying the proceedings in this case. Nonetheless, I must exercise caution and adhere to the hierarchical structure of our courts. 12. Regarding the draft amended plaint, I have reviewed it and find no prejudice that will be caused to the respondents. To ensure fairness, I will grant the respondents leave to amend their pleadings if they so wish. 13. Overall, I am persuaded that to facilitate the determination of the real questions in dispute between the parties, it is proper and just that the application be allowed. 14. Final orders for disposal 15. a. The application dated 4/11/24 is hereby allowed. b. Upon service of the amended plaint, the respondents shall have corresponding leave of 15 days to amend their pleadings if so desired. c. Thereafter, parties to expediently list the matter for case management and eventual hearing on priority basis. d. Costs shall be in favour of the 1st and 2nd respondents Orders accordingly DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF OCTOBER 2025 VIA MICROSOFT TEAMS. J G KEMEI JUDGE Delivered online in the presence of; Ms Biwott for the Plaintifi Mr Manyara for the 1st and 2nd Defendants N/A for the 3rd and 4th Defendants Ms Mutonyi for the Interested Party C/A – Ms Yvette Njoroge https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6927/eng@2025-10-09 3

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