Leyaran & 11 Others v Nyamache Tea Factory Co. Ltd & 4 Others

THE ATTORNEY GENERAL………………………………..…..5th DEFENDANT/RESPONDENT AND KABARAK LIMITED………………………………………………….…..1st INTERESTED PARTY KENYA TEA DEVELOPMENT AGENCY HOLDINGS LIMITED……….2nd INTERESTED PARTY RULING 1. Coming up for determination is a Notice of Motion dated 21.04.2026 filed by the Applicants/Plaintiffs herein seeking the following orders; a) That the Plaintiffs/Applicants be granted leave to amend their Plaint in terms of the Draft Amended Plaint annexed hereto. b) That the Draft Amended Plaint be deemed as duly filed and served upon payment of the requisite court fees. c) That the costs of this application be provided for. 2. The Application is based on the following grounds and supported by the sworn affidavit of Stephen Oramat Kolian dated 21.04.2026; a) That subsequent to the filing of the Plaint, the Plaintiffs/Applicants have discovered new and material facts which are necessary for the just and effectual determination of the dispute herein. b) That it has become necessary to enjoin additional parties to these proceedings in order to enable this Honourable Court to completely and effectually adjudicate upon and settle all questions involved in the suit. c) That the proposed amendments are made in good faith and are not intended to prejudice, embarrass, or delay the fair trial of this suit. d) That the proposed amendments will not occasion any prejudice to the Defendants/Respondents or the Interested Parties that cannot be compensated by an award of costs. P a g e 2 | 10

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e) That the amendments sought are necessary to bring out the real questions in controversy and to avoid multiplicity of suits. 3. The Respondents filed a Replying Affidavit in response to the Notice of Motion dated 18.06.2026 and sworn by James Ombasa Omweno, the Chairman of the Board of Directors for Ogembo Tea Factory Company Limited, and with the knowledge and authority from the chairmen of Kiamokama Tea Factory Company Limited and Nyamache Tea Factory Limited. The Respondents depone as follows; (i) that the amendment sought by the Applicants is to change the dispute from a boundary dispute to a historical land dispute which changes the cause of action with which the initial pleadings were intended. The cause of action would morph into a new case and these amendments fly in the face of the principles governing amendment of the pleadings. (ii) that Article 67 (2) (e) of the Constitution and Section 15 of the National Land Commission Act vests the primary mandate of investigating historical land injustices in the National Land Commission. (iii) The Defendants depone that they shall be highly prejudiced by the Amendments as they introduce a new cause of action that is materially different from the initial cause of action and which calls for a question on the jurisdiction of this Honourable Court. (iv) The Respondents depone that the Plaintiffs have not laid a basis in law for the granting of the orders sought in the Application and the same should be dismissed with costs. 4. Parties were directed to file submissions. 1st and 2nd Plaintiffs/Applicants’ Submissions 5. The Applicants framed 5 issues for determination by this Honourable Court. P a g e 3 | 10

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(i) On issue No. 1, whether the proposed amendments satisfy the legal principles governing amendment of pleadings under Order 8 of the Civil Procedure Rules, the Applicants submit that the proposed amendments fully satisfy the legal principles governing the amendment of pleadings under Order 8 Rule 3(1) and Rule 5(1) Civil Procedure Rules, Eastern Bakery v Castelino (1958) EA 461, Mobil Oil Kenya Limited v John Khamis Shabaan, Nairobi High Court Commercial Division, Civil Case No. 998 of 2002 (Ruling delivered on 22.08.2005), Central Kenya Ltd v Trust Bank Ltd & 5 Others , Civil Appeal No. 222 of 1998 [2000]eKLR, Chittaley and Rao, AIR Commentaries on the Indian Civil Procedure Code, and Ochieng & Others v First National Bank of Chicago, Civil Appeal No. 149 of 1991. (ii) The Applicants submit that the Amendments are necessary for determining the real question in the controversy between the parties. The amendments elaborate on the adjudication history of the suit properties, clarify the factual background leading to the present dispute, introduce material facts discovered after filing the original plaint, and seek the joinder of the parties whose participation is necessary for the effective and complete adjudication of the dispute. (iii) On issue No. 2, whether the proposed amendments introduce a new or inconsistent cause of action or fundamentally alter the character of the suit, the Applicants submit that the law is well settled that the mere introduction of additional facts, particulars or even a different legal basis does not, of itself, amount to the introduction of a new or inconsistent cause of action citing Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000]eKLR and Ochieng & Others v First National Bank of Chicago, Civil Appeal No. 149 of 1991. The Applicants claim that the proposed amendments do not introduce a new or inconsistent cause of action, do not fundamentally alter the character of the suit, and P a g e 4 | 10

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fully satisfy the principles governing amendment of pleadings under Order 8 of the Civil Procedure Rules. (iv) On issue No. 3, whether the proposed amendments convert the present suit into a historical land injustice claim, the Applicants submit that it is trite that the nature of a suit is determined from the pleadings read as a whole, the cause of action disclosed therein and the reliefs sought relying on the case of Galaxy Paints Co. Ltd v Falcon Guards Ltd [2000] eKLR, Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR) and Article 40 of the Constitution. (v) On the same issue, the Applicants submit that the amendment does not fall within the meaning of Article 67 (2) (e) of the Constitution and Section 15 of the National Land Commission Act and rather discloses an ordinary land dispute concerning the alleged unlawful interference with the Plaintiffs’ existing proprietary rights and long-established boundaries. Further, jurisdiction cannot be invoked merely because historical facts are pleaded citing Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR. (vi) On issue No. 4, whether the proposed amendments will occasion any prejudice to the Respondents incapable of being compensated by an award of costs, the Applicants submit that an amendment should not be refused merely because it occasions inconvenience to the opposing party quoting Eastern Bakery v Castelino (1958) EA 461, Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000]eKLR and Ochieng & Others v First National Bank of Chicago, Civil Appeal No. 149 of 1991. (vii) On issue No. 5, whether the interests of justice favour granting leave to amend the plaint, the Applicants submit that the interests of justice overwhelmingly favour granting leave to amend the Plaint citing Order 8 Rule 5(1) of the Civil Procedure Rules, Sections 1A, 1B, and 3A of the P a g e 5 | 10

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Civil Procedure Act, Article 159 (2)(d) of the Constitution, Eastern Bakery v Castelino (1958) EA 461, Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000]eKLR and Ochieng & Others v First National Bank of Chicago, Civil Appeal No. 149 of 1991. (viii) The Plaintiffs urge the court to exercise its discretion in favour of substantive justice by granting leave to amend the Plaint and allow the Notice of Motion dated 21.04.2026 with costs to the Applicants. 1st, 2nd and 3rd Respondents’ submissions 6. The Respondents submitted vide written submissions and framed 2 key issues for determination by this Honourable Court. (i) On issue No. 1, whether this Honourable Court has original jurisdiction, the Respondents submit that this court lacks original jurisdiction where the dispute is purely one of boundary ascertainment and that the Applicants ought first to invoke the statutory mechanism before the Land Registrar as per Sections 18 and 19 of the Land Registration Act, and although Section 13 of the Environment and Land Court Act gives the ELC jurisdiction, Section 18 (2) of the Land Registration Act expressly bars the court from entertaining boundary disputes before determination by the Land Registrar. Also citing the case of Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1. (ii) On the same issue, the Respondents submit that in Eastern Bakery v Castelino (1958) EA 461 and Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000] eKLR the courts held that amendments should not introduce a new and inconsistent cause of action or substantially alter the character of the suit. P a g e 6 | 10

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(iii) On issue No. 2, whether amendments that substantially change the character of the suit are admissible, the Respondents cited the matter of Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited [2013] eKLR where the court reaffirmed that amendments are not granted where they substantially change the character of the suit. The Respondents submit that the amendments sought would prejudice the Respondents who prepared the defense on the basis of a boundary dispute and not a constitutional petition requiring entirely different evidence, witnesses and legal responses. (iv) The Defendants submit that there is a Land Registrar’s Report on record which this Honourable Court can properly rely upon in determining the dispute and that the report was prepared pursuant to the statutory mandate of the Land Registrar and addresses the boundary position and occupation on the ground. (v) The Respondents also submitted additional grounds of opposition to the amendments claiming that the Applicants actively initiated and participated in the Land Registrar’s process and are estopped from abandoning it merely because the Land Registrar’s Report does not support their preferred outcome. Further, permitting the amendment would be contrary to Sections 1A and 1B of the Civil Procedure Act requiring efficient and timely disposal of disputes. 7. The Respondents made the following prayers in their submissions; a) Find and hold that the present dispute is a boundary dispute within the meaning of Sections 18 and 19 of the Land Registration Act. b) Find and hold that this Honourable Court lacks original jurisdiction before prior determination by the Land Registrar. c) Reject any amendment converting the present suit into a historical land injustice petition. P a g e 7 | 10

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d) Strike out and/or dismiss the suit for being premature, incompetent and an abuse of the court process. e) Direct the parties to proceed on the basis of the Land Registrar’s Report already on record and/or refer the matter to the Land Registrar where appropriate. f) Award costs of the suit and aborted site visits to the 1 st, 2nd and 3rd Respondents. Issues for Determination 8. Having analyzed the application, the affidavit in support and in opposition to the application, the rival submissions as well as considered the law the court frames the following as issues for determination; (i) Whether or not the application is merited. (ii) What reliefs ought to issue. (iii) Who bears the costs of the Application. Analysis and Determination 9. With regard to issue No. 1, the court under this issue shall determine whether the application for Amendments meets the test for amendments so as to be considered meritorious. 10. The test for Amendment of pleadings was set out in the decision in the case of Joseph Ochieng and 2 Others trading as Aquiline Agencies Vs. First National Bank of Chicago (1995) KECA 31 KLR as quoted in the decision in Family Bank Ltd Vs. Step Up Holding Ltd (Civil Appeal E004 of 2022) 2026 KECA 1235, where the court observed as follows; “(a) the power of the court to allow amendments is intended to determine the true substantive merits of the case; (b)power to amend can be exercised by the court at any stage of the P a g e 8 | 10

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proceedings. (c) That as a general rule however late the amendments is sought to be made it should be allowed if made in good faith provided costs can compensate 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 rely on Limitation Act, subject however to powers of the court to still allow an Amendment notwithstanding the expiry of the current period of Limitation…” 11. Applying the above principles to the application and noting the grounds penned in support of the application, the court finds that the application has met the test and the issue of the reframing of the cause of action if the Amendment is allowed to turn into a historical injustice case, is an issue that the Defendants are at liberty to raise the same once the substantive Amendments have been made. 12. In reference to issue No. 1, the court finds that the application including the issue of joinder of additional parties and discovery of new and material facts are plausible and will make determination of all material and substantive issues and avoid multiplicity of suits, hence the application is merited. 13. On what reliefs ought to issue, the court having found merit in the application allows the same, in terms that: a. The Plaintiff/Applicant are granted leave to amend the Plaint in terms of the Draft Amended Plaint. b. The Draft Amended Plaint to be filed and served within 7 days from today. c. Leave is granted to the Defendants to file Amended their defence within 15 days after service of the Amended Plaint. P a g e 9 | 10

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d. The Interested Party to file their Defence within 15 days of service of the Amended Plaint. e. The Plaintiff will have 28 days from today to file their documents and witness statements in support of the Amended Plaint; in compliance with Order 11. f. The Defendants and Interested Parties will have 45 days from today to file their documents and witness statements in support of the Amended Defence. g. Mention for compliance and pre-trial conference on 16 th of November 2026 h. Costs of the application to be on the cause. Dated at Kilgoris this 1st day of October, 2026 Hon. M.N Mwanyale Judge In the presence of CA – Sylvia/Victor Ms. Cherono h/b for Mr. Kembero for Plaintiff Mr. Mukhonyi for 1st to 3rd Respondent N/A for 4th and 5th Respondent P a g e 10 | 10

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