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ELCPartially AllowedPetition dated 28th April 2025 (Notice of Motion dated 30th June 2026)· [2026] KEELC 5327 (KLR)

Manyala & 3 others (Suing as Members of Kibuye Market Traders) v City Manager, County Government of Kenya & 4 others (Petition E002 of 2025) [2026] KEELC 5327 (KLR)

High Court of Kenya at Kisumu
21 August 2026
5,033 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court allowed Kibuye traders to amend their petition against Kisumu County over an alleged eviction, but ordered them to pay the County Kshs. 20,000 in costs.

What this practically means

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Executive summary

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The Petitioners, traders at Kibuye Market, petitioned on 28th April 2025 challenging the closure of the market and their threatened relocation to Uhuru Business Market, and impugning the utilisation of Kshs. 415,000,000 said to have been spent upgrading the market. On 31st July 2025 the parties recorded a consent compromising their rival interlocutory applications, providing for a 180-day joint cleaning exercise, no relocation, and a mention after 180 days. The Petitioners then moved by Notice of Motion dated 30th June 2026 for leave to amend the Petition to plead an alleged forcible eviction and destruction of property (new paragraph 31(A)) and a claim for general damages (new prayer 7A). The 1st to 4th Respondents opposed, contending the consent compromised the whole suit, leaving the Court functus officio; that the amendment introduced a new cause of action over events that never occurred; that the application was brought in bad faith; and that prayers 6 and 7 of the Petition lay outside the Court's jurisdiction. The Petitioners filed no submissions. The Court held that the consent, having contractual effect, must be construed strictly: on its plain words it compromised only the two applications, not the Petition, which remained pending and amendable. The proposed amendment was held continuous with, not inconsistent with, the original claim; no limitation defence was prejudiced; and the alleged prejudice was compensable in costs. The Court declined to try the merits of the contested eviction allegation on affidavit but criticised the utter lack of particularity. Leave was granted on terms, confined to paragraph 31(A) and prayer 7A, with filing within seven days, responses within twenty-one days of service, and the Petitioners to pay the 1st to 4th Respondents' costs assessed at Kshs. 20,000/=. The jurisdictional objection to prayers 6 and 7 was left open for proper argument.

Key legal issues

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01

Functus officio by reason of the consent order

Holding

The consent compromised only the two interlocutory applications of 28th April 2025 and 9th May 2025, not the Petition itself; the Court is functus officio only as to those applications

Reasoning

The consent's operative words compromised only the parties' applications. The Petition is not mentioned, there is no release or full-and-final-settlement clause, clause (d) contemplated further orders, and the Respondents' own letter of 8th April 2026 asked that the Petition be marked as closed, showing it remained alive. The Petition therefore remains pending and capable of amendment.

p. 6
02

Whether leave to amend should be granted

Holding

Leave granted on terms: the amendment is continuous with the original Petition, not a new cause of action; no limitation defence is prejudiced; prejudice capable of compensation in costs

Reasoning

The amendment alleges a further act of interference of the same character as the original claim, so it is an enlargement rather than a substitution. General damages are available under Article 23(3)(e). No limitation issue arises. But the pleading is unparticularised, so leave is granted on terms requiring a pleading the Respondents can meaningfully answer.

p. 7
03

Jurisdictional objection to prayers 6 and 7

Holding

The objection is not an objection to the amendment, and is properly raised by preliminary objection or at the hearing; the Court expressed no view on it

Reasoning

The prayers impugning use of Kshs. 415,000,000 and the tendering process were already in the original Petition and are not introduced by the amendment. A jurisdictional challenge of that character requires full argument at the appropriate time and form, not determination in passing on an interlocutory application.

p. 9
04

Effect of failure to file submissions

Holding

Failure to file submissions is not fatal and does not entitle the Court to dismiss an application without more

Reasoning

Submissions are neither pleadings nor evidence and cannot add to or subtract from the record. The Court retains a duty to determine the Motion on the material on record, giving the defaulting party the benefit of its pleaded case, though the default was regrettable.

p. 5

Legal principles established

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  • A consent order takes effect as a contract and must be construed according to its terms; the Court cannot enlarge a compromise beyond what the parties agreed
  • Upon an application for leave to amend, the Court does not try the proposed claim; a denial of the alleged facts does not convert a disputed allegation into an established falsehood
  • The relevant prejudice on an amendment application is procedural and irremediable, not the ordinary financial exposure of being sued
  • A party complaining of constitutional infringement must plead with reasonable precision (Anarita Karimi Njeru rule); Article 159(2)(d) is not a licence for imprecision

Court orders

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  1. 1.The Petitioners are granted leave to amend the Petition dated 28th April 2025 by the introduction of the proposed paragraph 31(A) and the proposed prayer 7A only, and not otherwise
  2. 2.The Amended Petition shall be filed and served within seven (7) days of the date hereof, failing which the leave granted shall lapse without further order and the Petition dated 28th April 2025 shall stand as the operative pleading
  3. 3.The Respondents shall be at liberty to file and serve their respective amended or further responses within twenty-one (21) days of service of the Amended Petition upon them
  4. 4.The Petitioners shall bear the costs of and occasioned by the application, assessed at Kshs. 20,000/= payable to the 1st to 4th Respondents within thirty (30) days of the date hereof
Jurisdiction invoked
Articles 22, 47, 50 and 159 of the Constitution of Kenya, 2010; Sections 3 and 3A of the Civil Procedure Act; Order 8 Rules 3 and 5 of the Civil Procedure Rules, 2010

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, "Manyala & 3 others (Suing as Members of Kibuye Market Traders) v City Manager, County Government of Kenya & 4 others (Petition E002 of 2025) [2026] KEELC 5327 (KLR)", Case Analysis (2026). Petition dated 28th April 2025 (Notice of Motion dated 30th June 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5327/eng@2026-08-21

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