Kabwere & 5 others v County Government of Busia (Environment and Land Case 9 of 2016) [2026] KEELC 4893 (KLR)

The court acknowledged the suit's age and the applicants' lack of diligence, noting that a party seeking amendment after closing its case bears a heavy burden. However, the omitted parcel numbers are subdivisions of L.R. BUKHAYO/BUGENGI/7772 already in dispute, so no new cause of action arises. Refusal could leave the real controversy unadjudicated and spawn further litigation over the same root parcel. Reservations about lateness were outweighed by the need to determine the real issues, with leave granted on terms protecting the Respondent.

Although neither the Civil Procedure Act nor the Rules expressly provide for reopening, jurisdiction derives from Section 3A and the overriding objective (Sections 1A and 1B). Having allowed the amendment, refusing reopening would render it largely futile. Prejudice is mitigated by limiting reopening to matters arising from the amended plaint, granting the Respondent leave to respond and recall witnesses, and throw-away costs.

The Respondent contended the court became functus officio upon closure of the plaintiffs' case and that reopening would grant an unfair second opportunity after cross-examination. The court accepted concerns about the old matter and trial by ambush but held that limiting the scope of reopening, allowing responses, witness recall and costs adequately safeguards the defence, so substantive justice prevailed over the procedural lapse.