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

RULING 1. Before the Court are two Notices of Motion filed by the Plaintiffs/Applicants. The first application is the Notice of Motion dated 23rd February 2026, seeking leave to re-amend the plaint and for the annexed draft re-amended plaint to be deemed as duly filed upon payment of the requisite Court fees. The second application is the Notice of Motion dated 9 th March 2026, seeking leave to re-open the Plaintiffs’ case after its closure to facilitate the proposed re-amendment of the plaint. Owing to the close nexus between the two applications, the Court considers it appropriate to determine them in this ruling, beginning with the application dated 23rd February 2026, whose determination has a direct bearing on the subsequent application dated 9th March 2026. THE NOTICE OF MOTION DATED 23RD FEBRUARY 2026 2. The Plaintiffs/Applicants filed a Notice of Motion dated 23 rd February 2026, seeking leave of the Court to re-amend their plaint. They also prayed that the draft re-amended plaint annexed to the application be deemed as duly filed and served BUSIA ELC NO. 9 OF 2016 – RULING Page 2 of 19

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upon payment of the requisite Court fees, with costs to abide the outcome of the suit. 3. The application is supported by the affidavit of JANE NANGUNDA KABWERE, the 1st Plaintiff, who deposes that through an inadvertent mistake by their advocate, several land parcel numbers, namely BUKHAYO/BUGENGI/11675, 10011, 10012, 11697, 11698 and 9851, were omitted from the body of the plaint, although they had been included in the earlier application for injunction and in the resultant injunctive orders. She further states that counsel also inadvertently omitted to plead the date when the cause of action arose, which was in or about the year 2016. 4. The Applicants aver that the intended amendments are merely meant to correct the said omissions and clarify the pleadings without introducing a new cause of action or substantially altering the nature of the suit. They maintain that the proposed amendments will not occasion any prejudice to the Defendant and that it is in the interests of justice that the Court grants leave to amend the plaint so that the real issues in controversy may be effectively determined. BUSIA ELC NO. 9 OF 2016 – RULING Page 3 of 19

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5. The application is therefore premised on the contention that the omissions were the result of counsel’s inadvertence and that the proposed amendments are necessary to ensure that the pleadings accurately reflect the dispute before the Court. 6. I have carefully perused the Court record and note that, as at the time of preparing this ruling, the Defendant/Respondent had neither filed a replying affidavit nor grounds of opposition in response to the Notice of Motion dated 23 rd February 2026. This is notwithstanding the directions issued by the Court on 29th June 2026, requiring the parties to file and exchange their respective responses and written submissions. In the absence of any response by the Defendant/Respondent, the Court is nonetheless satisfied that the application is properly before it and shall proceed to determine it on its merits, guided by the material placed before the Court and the applicable law. ANALYSIS AND DETERMINATION 7. I have considered the application and the supporting affidavit, and the only issue that arises for determination is whether, in view of the circumstances of this case, including the fact that the suit has been pending since 2016, the BUSIA ELC NO. 9 OF 2016 – RULING Page 4 of 19

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Plaintiffs/Applicants have established sufficient grounds to warrant the grant of leave to re-amend the plaint. 8. The law on amendment of pleadings is well settled. Under Order 8 Rule 3 of the Civil Procedure Rules, the Court has unfettered discretion to allow amendments at any stage of the proceedings, provided that such amendments are necessary to determine the real questions in controversy between the parties and do not cause prejudice that cannot be compensated by an award of costs. 9. This principle was succinctly stated by the Court of Appeal in Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000] eKLR, where the Court held that: “……. Hence the guiding principle in applications for leave to amend is that 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 (see, Beoco Ltd -v- Alfa Laval Co. Ltd [1994]4 ALL ER. 464).” BUSIA ELC NO. 9 OF 2016 – RULING Page 5 of 19

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10. In the present case, the Applicants seek leave to re-amend the plaint principally to include parcel numbers BUKHAYO/BUGENGI/11675, 10011, 10012, 11697, 11698 and 9851, which were allegedly omitted from the plaint through inadvertence of counsel. The Applicants explain that the omitted parcels are subdivisions of the original parcel, L.R. NO. BUKHAYO/BUGENGI/7772, which forms the subject matter of this suit. They also seek to plead the date when the cause of action arose, which they contend was inadvertently omitted. 11. This Court cannot ignore the fact that this is an old matter having been instituted in 2016. Equally, the Plaintiffs had already closed their case by the time the present application was filed. The Court is therefore alive to the need to uphold the constitutional imperative under Article 159(2)(b) of the Constitution and the overriding objective under Sections 1A and 1B of the Civil Procedure Act that litigation should be disposed of expeditiously. 12. Ordinarily, a party who seeks to amend pleadings after the close of its case bears a heavy burden of explaining the delay. BUSIA ELC NO. 9 OF 2016 – RULING Page 6 of 19

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In the instant case, the explanation offered by the Applicants that the omission was occasioned by inadvertence of counsel is less than satisfactory, considering the age of the suit and the numerous opportunities that existed to rectify the pleadings before the commencement and conclusion of the Plaintiffs’ case. 13. Nevertheless, the Court must also consider the nature of the proposed amendments. The omitted parcel numbers are not unrelated properties but are subdivisions of the original parcel that is already the subject of the suit. Consequently, the proposed amendment does not introduce an entirely new or unrelated cause of action. 14. Refusing the amendment may result in the real controversy between the parties not being fully adjudicated and may potentially give rise to further litigation over the same root parcel, contrary to the principle that Courts should, where possible, determine all matters in controversy in a single suit. 15. Accordingly, although this Court harbours considerable reservations regarding the lateness of the application and the lack of diligence on the part of the Applicants, those concerns BUSIA ELC NO. 9 OF 2016 – RULING Page 7 of 19

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are outweighed by the need to determine the real issues in controversy. reluctantly, The to Court is therefore persuaded, exercise its discretion in favour albeit of the Applicants. Such leave shall, however, be granted on terms that safeguard the Respondent’s right to respond to the amended pleadings and ensure that no undue prejudice is occasioned. 16. The Court is of the considered view that the Applicants’ failure to incorporate the omitted parcel numbers and the date when the cause of action arose at the appropriate stage has necessitated the present application and the attendant delay in the disposal of a suit that has been pending since 2016. 17. It is only fair that the Respondent be compensated for the inconvenience and expense occasioned by the Applicants’ omission. Consequently, the grant of leave shall be conditional upon the Applicants paying throw-away costs of Kenya Shillings Twenty Thousand only (Kshs.20,000/=). 18. In the case of Kiome -v- Kihuga (Environment & Land Case 291 of 2015) [2023] KEELC 144 (KLR) the Court awarded throw away costs and provided that “Defendant to pay BUSIA ELC NO. 9 OF 2016 – RULING Page 8 of 19

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throw away costs of Kshs 10,000/= before the next hearing date” 19. The upshot is that this Court hereby finds that the Notice of Motion dated 23rd February 2026 to be meritorious and is hereby allowed. 20. Having determined the Notice of Motion dated 23 rd February 2026, I now turn to consider the Notice of Motion dated 9 th March 2026, whose determination will dictate the manner in which the leave herein granted is to be effected. THE NOTICE OF MOTION DATED 9TH MARCH 2026 21. The Plaintiffs/Applicants filed a Notice of Motion dated 9 th March 2026 seeking leave of the Court to re-open their case after its closure, with costs of the application to be in the cause. THE APPLICANT’S CASE: 22. The application is supported by the affidavit of Mr Ashioya, Advocate for the Plaintiffs/Applicants. He depones that during the hearing of the suit, the Plaintiffs discovered certain errors of omission in their pleadings. BUSIA ELC NO. 9 OF 2016 – RULING Page 9 of 19

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23. He states that the Plaintiffs have since filed a separate application dated 23rd February 2026 seeking leave to reamend the plaint to rectify the said omissions. 24. He further avers that because the Plaintiffs had already closed their case, the Court must grant leave to re-open the case to facilitate the proposed amendments to the plaint. According to the deponent, the application is made in good faith, and it is in the interests of justice that the Court grants the orders sought. BUSIA ELC NO. 9 OF 2016 – RULING Page 10 of 19

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THE RESPONDENT’S CASE 25. The application is opposed through the Replying Affidavit of Egesa Wambura, the Defendant/Respondent. Principal The Legal deponent Counsel contends of the that the application lacks any legal basis, is made in bad faith, and fails to disclose any compelling reason to warrant the reopening of the Plaintiffs’ case. 26. He avers that the Plaintiffs merely allege the discovery of errors of omission without specifically identifying the alleged omissions, thereby prejudicing the Respondent’s ability to effectively respond to the application. 27. The Respondent further deposes that the Plaintiffs have referred to a re-amended plaint dated 23 rd February 2026, yet the same had never been served upon the Defendant. It is also averred that this is an old suit filed in 2016, and that the 1 st Plaintiff testified on behalf of the other Plaintiffs, produced documentary evidence and thereafter closed the Plaintiffs’ case. BUSIA ELC NO. 9 OF 2016 – RULING Page 11 of 19

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28. Consequently, the Respondent contends that the Court became functus officio with respect to the Plaintiffs’ case and cannot reopen it in the absence of compelling reasons. 29. The Respondent further argues that granting the application would amount to allowing the Plaintiffs to fill gaps in their case after the Respondent had already cross-examined the Plaintiffs’ witness, thereby affording them an unfair second opportunity to improve their case to the prejudice of the defence. It is therefore urged that the application be dismissed with costs. ANALYSIS AND DETERMINATION 30. I have considered the Notice of Motion dated 9 th March 2026 together with the affidavits therein, and the Court is of the view that the only issue that arises for determination is whether the Plaintiffs/Applicants have established sufficient grounds to warrant the reopening of their case. 31. The power of the Court to reopen a party’s case is discretionary and must be exercised judiciously and sparingly. Although neither the Civil Procedure Act nor the Civil Procedure Rules expressly provide for reopening of a case after its closure, the Court derives such jurisdiction from its inherent BUSIA ELC NO. 9 OF 2016 – RULING Page 12 of 19

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powers under Section 3A of the Civil Procedure Act and the overriding objective under Sections 1A and 1B of the Civil Procedure Act, which enjoin the Court to facilitate the just, expeditious, proportionate and affordable resolution of disputes. The discretion must, however, be exercised in a manner that balances the interests of justice with the need for finality in litigation. 32. In Samuel Kiti Lewa -v- Housing Finance Co. of Kenya Ltd & Another [2015] eKLR, the Court provided that: “The Court retains discretion to allow re-opening of a case. That discretion must be exercised judiciously. In exercising that discretion, the Court should ensure that such re-opening does not embarrass or prejudice the opposite party. In that regard, the reopening of a case should not be allowed where it is intended to fill gaps in evidence. Also, such a prayer for re-opening of the case will be defeated by inordinate unexplained delay.” BUSIA ELC NO. 9 OF 2016 – RULING Page 13 of 19 and

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33. Similarly, in the case of Langat & another -v- Sigilai & Rono (Administratrix and Administrator Respectively of the Estate of the Late Chemiron Arap Sigilai) & 3 others [2026] KEELC 4011 (KLR) the Court provided that: “The Court is also guided by the decision in Philip Chemwolo & Another v Augustine Kubende [1982 – 88] KAR 103, where the Court stated that blunders will continue to be made from time to time and that, unless there is fraud or intention to overreach, errors should not ordinarily deny a party an opportunity to have his case determined on the merits” 34. In the above case the Court emphasized that blunders will continue to occur in litigation and that, where possible, Courts should determine disputes on their merits rather than punish litigants for the mistakes of counsel, provided that no irreparable prejudice is occasioned to the opposite party. 35. The Respondent has opposed the application on the grounds that the Plaintiffs have failed to disclose compelling reasons for BUSIA ELC NO. 9 OF 2016 – RULING Page 14 of 19

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reopening the case, that the suit has been pending since 2016, and that the application merely seeks to afford the Plaintiffs a second opportunity to improve their case after the close of their evidence. The Respondent further contends that reopening the case would amount to trial by ambush and occasion prejudice to its defence. 36. There is considerable merit in the Respondent’s concern that this is an old matter. The record shows that the suit was instituted in 2016 and that the Plaintiffs closed their case after the 1st Plaintiff testified on behalf of the other Plaintiffs. Ordinarily, reopening a case at such an advanced stage should not be encouraged, particularly where the application is prompted by matters that ought to have been addressed before or during the hearing. Litigation must, at some point, come to an end, and parties are expected to present their entire case at the appropriate stage. 37. However, this Court has already, in its determination of the Notice of Motion dated 23rd February 2026, granted the Plaintiffs leave to re-amend the plaint. The Court found that the proposed amendments, BUSIA ELC NO. 9 OF 2016 – RULING though sought belatedly, Page 15 of 19 are

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necessary for the just and effectual determination of the real issues in controversy because they seek to incorporate parcel numbers that are subdivisions of the original suit property, L.R. NO. BUKHAYO/BUGENGI/7772, and do not introduce a new or inconsistent cause of action. 38. Having granted leave to amend the plaint, it would serve little practical purpose if the Plaintiffs were denied an opportunity to formally place before the Court evidence relating to the amended pleadings. Refusing to reopen the case would render the leave granted to amend largely futile and undermine the objective for which the amendment was allowed. The two applications are therefore inextricably linked, and the success of the first application necessarily informs the determination of the second. 39. The Court is nevertheless alive to the prejudice that may be occasioned to the Defendant/Respondent. That prejudice, however, can adequately be mitigated by limiting the scope of the reopening strictly to matters arising from the amended plaint, granting respond to the the Respondent amended BUSIA ELC NO. 9 OF 2016 – RULING corresponding pleadings, recall leave to witnesses if Page 16 of 19

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necessary, and awarding throw-away costs to compensate for the inconvenience occasioned by the Plaintiffs’ omission. Such safeguards ensure that neither party gains an unfair procedural advantage while enabling the Court to determine the dispute on its substantive merits. 40. In the circumstances, although the Court does not condone the Applicants’ lack of diligence in bringing the present application after the closure of their case in a suit that has been pending for nearly a decade, the interests of substantive justice outweigh the procedural lapse. The Court is therefore satisfied that sufficient cause has been demonstrated to warrant the reopening of the Plaintiffs’ case. DECLARATION AND FINAL ORDERS 41. Having considered the two Notices of Motion dated 23 rd February 2026 and 9th March 2026, the affidavits in support and in opposition, the applicable law and the circumstances of this case, I am satisfied that the interests of justice warrant the grant of the orders sought. Although the suit has been pending since 2016, the proposed amendments are intended to facilitate the complete adjudication of the dispute, and any prejudice to BUSIA ELC NO. 9 OF 2016 – RULING Page 17 of 19

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the Defendant/Respondent can adequately be compensated by an award of throw-away costs and an opportunity to respond to the amended pleadings. 42. Accordingly, the Court makes the following orders: a) The Notices of Motion dated 23rd February 2026 and 9th March 2026 are hereby allowed. b) Leave is hereby granted to the Plaintiffs/Applicants to re-amend the Plaint in terms of the Draft Re-Amended Plaint annexed to the Notice of Motion dated 23rd February 2026. c) The Plaintiffs`/Applicants case is hereby reopened. d) The Draft Re-Amended Plaint is to be filed and served upon the Defendant within the next fourteen (14) days from the date of this ruling. e) Upon service of the Re-Amended Plaint, the Defendant shall be at liberty to file and serve a Response to the Re-Amended Plaint together BUSIA ELC NO. 9 OF 2016 – RULING Page 18 of 19

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with all documents within fourteen (14) days of such service. f) As a condition for the grant of the foregoing orders, the Plaintiffs/Applicants shall pay the Defendant throw-away costs occasioned by the two applications assessed at Kenya Shillings Twenty Thousand only (Kshs. 20,000/=) payable before the matter is set down for hearing. Ruling dated, signed and delivered in open Court on this 30 th day of July 2026. C. MUGAMBI JUDGE 30TH JULY 2026 BUSIA ELC NO. 9 OF 2016 – RULING Page 19 of 19

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