Korir & 8 others v Rotich & 5 others (Environment and Land Case 73 of 2019) [2026] KEELC 4252 (KLR)

3. He stated that they had filed their plaint dated 9 th July, 2019 and when the matter came up for hearing on 17 th February, 2026 the Attorney General representing the 4th, 5th and 6th Defendants informed them that they had filed documents. 4. He further stated that they were served with the said documents on 26th February, 2026. He added that upon perusal of the documents, there was a list of persons allegedly allocated portions of the suit parcel during subsistence of the suit. 5. He stated that realization of the above necessitates amendment of the Plaint. He also stated that the transactions on the suit parcel were conducted during the subsistence of the suit contrary to the orders in place which bars any dealings. 6. He further stated that amendment of pleadings was necessary since the matter had not proceeded for hearing. He added that the Respondents shall not suffer any irreparable harm or loss should the amendment be allowed. 7. In conclusion, he urged the court to allow the application as prayed. RESPONSE ELC 73 OF 2019 PAGE 2

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8. The 2nd Defendant filed his replying affidavit sworn on 11 th March, 2025 where he averred that the matter has been in court for over seven years without the Plaintiffs being ready to proceed. 9. He further averred that the Plaintiffs in an attempt to justify their amendment claimed that they were only recently served documents by the 4th, 5th, and 6th Defendants. 10. He added that the Plaintiffs claimed that the said documents revealed the subdivision of the disputed land (parcels Kieseges/Subukia West Block 3/151, 170 & 171). 11. He averred that the said documents have been on record since December 2021 and that the Plaintiffs never raised service issues despite having actively participated in the proceedings. 12. He further averred that Plaintiffs, who also resided in the area, knew about the land subdivisions and the settlement of beneficiaries. He added that the Plaintiffs' witness, Joseph Barng'etuny, previously acknowledged a 1998 decision to have the suit land subdivided and issue titles. 13. The 2nd Defendant averred that the suit properties belonged to Ogilgei Farm Limited, which resolved to subdivide and distribute the land among its members. ELC 73 OF 2019 PAGE 3

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14. He went on to aver that since the Plaintiffs are not shareholders or members of the company, they lacked the legal standing to challenge the corporate resolution, the subdivisions or introduce a new cause of action. 15. He averred that the original suit parcels were no longer existence in their previous form, as they were lawfully subdivided and registered to individual beneficiaries who currently occupied them. 16. The 2nd Respondent averred that allowing the amendment was untenable as it was an attempt to litigate over the individual titles of people who are not even parties to the suit. 17. He added that doing so would force the registered owners join the case, unfairly prejudice the Respondents and violate the principle that litigation must eventually come to an end. 18. He urged the court to dismiss the application with costs. SUBMISSIONS 19. Counsel for the Plaintiffs filed their submissions dated 18 th March, 2026 where they identified two issues for determination, whether this honourable court ought to grant orders for the amendment of ELC 73 OF 2019 PAGE 4

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the pleadings and whether this court ought to issue orders as to costs. 20. On the first issue, they relied on Order 8 Rule 3 of the Civil Procedure Rules and the case of Angelina Chepng'etich Kimaiti V Tom Mong'are Nyariki & Another [2021] eKLR. 21. It was their submission that amendment of pleadings could be done with leave of court at any time before judgement was issued, and before the matter proceeds for hearing. 22. They submitted that the Plaintiffs brought the amendments prior to the matter being heard. They added that the same was brought promptly after being served with the 4 th, 5th and 6th Defendants documents. 23. They further submitted that the said documents served were never uploaded to the CTS platform and as such there was no negligence on the part of the Plaintiffs to acquire the documents or to have knowledge of their existence. 24. They added that the 1st to 3rd Defendant’s had filed a further list of documents dated the 16th September, 2019 which confirmed that the suit properties had not been sub-divided at the time of filing the suit but after the suit had been filed and interim orders issued. ELC 73 OF 2019 PAGE 5

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25. It was their submission that the documents by the Attorney General depicted a contrary situation wher the properties seemed to have been sub-divided after the filing of the suit. 26. They also submitted that the amendment was necessary so as to bring out the issues due for determination and to avoid miscarriage of justice. 27. On the final issue of costs, they urged the court to have the costs of the application to be in the cause. 28. Counsel for the 1st, 2nd and 3rd Defendants on the other hand filed his submissions dated 13th May, 2026 where he identified two issues for determination, whether the application is merited and who should bear the cost of the application. 29. On the first issue, he relied on Order 8 rule 3 of the Civil Procedure Rules and submitted that the application was an abuse of the court process. He argued that the Plaintiffs had never raised any concern that the 4th, 5th and 6th Defendants had not served them with their documents despite them having participated in the proceedings. 30. It was his submission that the documents the Plaintiffs alleged that they were recently served with were filed back in 2021 and have been on record for the last six years. He added that the ELC 73 OF 2019 PAGE 6

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parcels of land known as Kieseges/Subukia West/ Nyamamithi Block 3/151, 170 & 171 were subdivided long time ago and respective beneficiaries were settled which matter was well within the Plaintiffs knowledge. 31. Counsel argued that if the amendment is allowed, it would change the cause of action as it would bring litigation on titles of persons who are not parties to the suit that Ogilgei farm. 32. He submitted that the suit portions of land the Plaintiffs to litigate on are not in existence as the registers of the said portions were closed and the suit parcels of land subdivided and issued to the shareholders. 33. He relied on the cases of Kassam V Bank of Baroda (Kenya) Ltd (2002) 1 KLR 294, Coffee Board of Kenya V Thika Coffee Mills Limited & 2 Others (2014) eKLR and John Nyagaka Osoro V Reynold Karisa Charo & 5 others [2021] eKLR. 34. On the final issue of costs, he relied on Section 27 of the Civil Procedure Act and the case of Jasbir Singh Rai & 3 others V Tarlochan Singh Rai & 4 others SCK Petition No. 4 of 2012 [2014] eKLR and urged the court to award the 1 st, 2nd and 3rd Defendants costs of the application. ELC 73 OF 2019 PAGE 7

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ANALYSIS AND DETERMINATION 35. This court has carefully considered the application, replying affidavit and submissions and the main issue for determination is whether the Plaintiffs/Applicants should be granted leave to amend their Plaint. 36. Order 8 Rule 5 of the Civil Procedure Rules provides as follows; “(1) For purposes 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” 37. Further, Order 8 rule 3(5) provides as follows: “An amendment may be allowed under subrule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief ELC 73 OF 2019 PAGE 8

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has already been claimed in the suit by the party applying for leave to make the amendment.” 38. In the instant suit, the Applicants sought leave to amend their plaint to include a prayer declaring the suit parcels Kieseges/Subukia West/Nyamamithi Block 2/151, 170 and 171 and its subdivisions null and void. 39. I have taken the liberty to peruse the court record and it is not in dispute that the earlier plaint dated 9 th July, 2019 also refers to the suit parcels only that it did not mention its subdivisions. 40. The 2nd Respondent contends that allowing the amendment would change the cause of action by bringing litigation on titles of persons who are not parties to the suit that Ogilgei farm. 41. He further contends that the original suit parcel was no longer in existence as the same was subdivided and registered to individual beneficiaries who were currently in occupation. 42. In the case of Ochieng and Others V First National Bank of Chicago, Civil Appeal No. 147 of 1991, the Court of Appeal outlined the principles that guide courts in granting leave to amend pleadings, stating as follows: ELC 73 OF 2019 PAGE 9

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a) The power of the court to allow amendment is intended to determine the true substantive merits of the case. b) The amendments should be timeously applied for. c) Power to amend can be exercised by the court at any stage of the proceedings. d) That, as a general rule, however late the amendment is sought to be made, it should be allowed if made in good faith, provided costs can be compensated to the other side. e) The plaintiff will not be allowed to reframe his case or his claim if, by an amendment of the plaint, the defendant would be deprived of his right to reply on the Limitations Act, subject, however, to the powers of the court to still allow an amendment notwithstanding the expiry of the current period of limitation” 43. In the instant case, it is not in dispute that the suit parcels Kieseges/Subukia West/Nyamamithi Block 2/151, 170 and 171 has since been sub-divided. ELC 73 OF 2019 PAGE 10

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44. It is my opinion that the said subdivisions clearly arise from the same facts and cause of action as in the plaint dated 9 th July, 2019. 45. It is this court’s view that in as much as the earlier plaint failed to mention the suit parcels subdivisions, it is my opinion that the amendment sought does not alter the character of the suit. 46. It is my opinion that it would be necessary to amend the pleadings so as to determine the real question in controversy since allowing the original suit parcels to proceed for hearing without mentioning its sub-divisions would be an exercise in futility as the original suit parcels ceased to be in existence. 47. Notably, the matter has not yet been heard and also the Defendants have not demonstrated the prejudice, they may suffer if the amendment is allowed. 48. In addition, it is this court’s view that the Defendants will not be prejudiced since they will have an opportunity to respond to the amendment. 49. The upshot of the above is that the application dated 2 nd March, 2026 is merited and is allowed in the following terms; ELC 73 OF 2019 PAGE 11

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a) Leave is granted to the Plaintiff to amend the Plaint in terms of the annexed draft amended Plaint dated 18th February, 2026. b) The amended Plaint shall be filed and served within 14 days from the date hereof. c) The Defendants are granted leave to file and serve an amended defence within 14 days after service. d) The Plaintiffs to bear the costs of this application. 50. It is so ordered. Ruling dated, signed and delivered virtually at Nakuru this 18th day June 2026. L KOMINGOI JUDGE In presence of: Mr. H. Bitok for the Plaintiffs Mr. Onyango for Mr Konosi for the 1st – 3rd Defendants Ms Adomeyon for the 4th- 6th Defendants ELC 73 OF 2019 PAGE 12

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Court Assistant: Derrick /Irene ELC 73 OF 2019 PAGE 13

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