Kimanthi t/a Miale Centre (Formerly Jambo Traders v Sidian Bank of Kenya Ltd (Civil Case 162 of 2019) [2026] KEMC 104 (KLR)

3. 4. 1. The plaintifi/applicant be granted leave to amend his plaint as per the annexed draft amended plaint; 2. The amended plaint be deemed as duly and properly filed; 3. The costs of this application be provided for. The application is supported by the afidavit of the plaintifi/applicant and is premised on several grounds, some of which are not germane to the application. I will only highlight those that relate to the application: a. When the plaintifi gave instructions to his advocates to file this suit, he failed to give the full and proper account names; b. The plaintifi had erroneously and mistakenly admitted having received some loans which were never ofiered and/or given or and/or ofiered but not given; c. The plaintifi had not given particulars of some of the sums claimed in his plaint; d. The amendment of the plaint will not in any way prejudice the defendant as the account transactions are critical in the calculations regarding repayment of the loans and the moneys claimed against the defendant. In the afidavit in support of the application, the applicant reiterated the grounds on the face of the application and deposed that it was important to amend the plaint and clarify the discrepancies which also touch on the plaintifi’s claims against the defendant. That there were so many unlawful entries in the plaintifi’s personal bank accounts which were not genuine and/or justified. The plaintifi further deposed that it was important to amend the plaint so that the real issues could be brought before court for proper adjudication and determination. The Defendant’s Response 5. The defendant opposed the application by filing a Replying afidavit sworn by one Jackline Ndung’u, who claimed to be the defendant’s Senior Legal oficer. From the replying afidavit, the grounds of opposition are: a. The application is incompetent, fatally defective and incurable as the purported supporting afidavit was not sworn before a Commissioner for oaths; b. The draft amended plaint was not endorsed by a Commissioner for oaths and as such, it cannot amount to evidence; c. The intended amendment proposes to introduce a new cause of action and a new party and the same does not meet the threshold under Order 8 rule 5 of the Civil Procedure Rules; d. The application has been brought after a prolonged delay, which delay has not been explained; e. The application was made mala fide and is an abuse of the process of the court. Main Issues for Determination 6. Having considered the application and the response by the defendant, I find that the main issue for determination is whether there are suficient grounds to warrant an order for amendment of the plaint. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/104/eng@2026-05-26 2

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The Plaintifi's/Applicant’s Submissions 7. The plaintifi filed written submissions on 24/11/2023. He relied on the provisions of Order 8 rules 3 and 5 and submitted that the fundamental rule is that a party can amend their pleadings any time before final judgment. That there would be no prejudice to the other party who would always be at liberty to amend their pleadings as well. The plaintifi argued that even where the amendment introduces a new case, the same should be allowed unless it would change the action into one of a substantially difierent character that would be more conveniently be made subject of a fresh action. The plaintifi argued that the defendant would not be prejudiced in any way as they would be at liberty to amend their defence. The plaintifi relied on the authorities of John Nyagaka Osoro v Reynold Karisa Charo & 5 others [2021] eKLR and Lewa Ventures Limited v Equity Bank (Kenya) Limited [2022] eKLR. Submissions by the Defendant/Respondent 8. The defendant/respondent did not file any submissions. Analysis and Determination 9. I have considered the application as well as the response by the defendant. I have further considered the applicable law. While perusing the application, my attention was drawn to the draft amended plaint whose proposed prayer, among others, is a sum of Ksh. 21,268,130.54/=. That is a claim that is beyond the pecuniary jurisdiction of this court or any Magistrate’s court for that matter. Ordinarily, there would be no reason to refuse the amendment. In fact, the grounds of opposition by the defendant do not hold water. I have agonized over the question whether the court would allow an amendment whose efiect would result in a claim way beyond the jurisdiction of the court. 10. My view is that a court should not allow an amendment to a plaint if the efiect of the amendment would be to divest or oust the court of the very jurisdiction upon which the suit was instituted and is being entertained. Jurisdiction is foundational; without it, a court has no power to take further steps other than to down its tools. It would not make any sense for the court to allow the amendment then later down its tools for want of jurisdiction. The purpose of the amendment would not have been served. In my opinion, if the efiect of the proposed amendment would result in a claim beyond the jurisdiction of the court, the party proposing the amendment should, in the circumstances of this case, apply for the matter to be transferred to the High Court then seek amendment of the plaint at the High court. For that reason, I am inclined to decline the prayer by the plaintifi. Disposition 11. In view of the foregoing, I find that the application dated 28/5/2021 is devoid of merit. I proceed to dismiss it. I will not make any orders as to costs since were it not for the issue of jurisdiction, the application would have been allowed. DATED, SIGNED AND DELIVERED IN OPEN COURT AT MAKINDU THIS 26TH DAY OF MAY, 2026. Y.A SHIKANDA SENIOR PRINCIPAL MAGISTRATE. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/104/eng@2026-05-26 3

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