James Ang'awa Okeyo v Green Wells Energies Limited

Amendments annexed to the Supporting Affidavit and marked "JAO-10". (ii) That he be granted leave to file and serve the Amended Memorandum of Claim within 7 days of grant of leave to amend. (iii) That he be granted leave to file and serve a Supplementary List of Documents, confined to the two documents set out in Schedule B annexed to the Supporting Affidavit documents that and formed marked "JAO-11", part the of being Claimant's instructions to his then advocate prior to filing but were omitted from the List of Documents as filed on 11th August 2025. (iv) That costs of the application abide by the outcome of the case. (v) Any other relief the honourable court may deem fit to grant. 2. The application is premised on the grounds set out on its face and is supported by the Claimant’s affidavit. The Claimant deposes that the Memorandum of Claim filed by his Page 2 of 11

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former advocates, Messrs. Ombudo & Associates, differed in material respects from the version he had approved. In particular, he states that the claim for severance pay amounting to Kshs. 260,667/- was omitted, thereby reducing the total claim to Kshs. 3,103,697/=. He further contends that the prayer for general damages for breach of data protection rights was omitted and that the period of his employment was incorrectly stated as “January – May 2025” instead of “January – June 2025”. According to the Claimant, he only discovered these discrepancies on or about 30th July 2026 while being cross-examined. He further avers that some of the documents he had instructed his former advocates to file were similarly omitted, which led him to terminate their services. He therefore maintains that the proposed amendments and supplementary documents are necessary to incorporate the claims and documents that were inadvertently omitted. He urges the Court to allow the application, contending that it was brought promptly upon discovery of the omissions and that the Respondent will suffer no prejudice. Page 3 of 11

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3. The application is opposed by the Respondent through grounds of opposition dated 11th August 2026. The Respondent contends that the application constitutes an abuse of the Court process, having been filed after the close of pleadings and after the Claimant had presented his case. It points out that on 28th October 2025 and 19th October 2025, the Claimant and his advocate confirmed that all documents had been filed. The Respondent further contends that the Claimant had already testified and been crossexamined on the very matters he now seeks to amend. It also avers that, by January 2026, the Claimant was aware of the matters he now seeks to introduce, as demonstrated by the Respondent’s submissions in relation to the application dated 28th January 2026. The Respondent further notes that, by that time, the Claimant was acting in person and therefore contends that there was no justification for the delay in seeking the proposed amendments. 4. In rejoinder, the Claimant disputes the Respondent’s reliance on its submissions, contending that those submissions did not address the omissions he now seeks to rectify. In any event, he maintains that submissions constitute arguments Page 4 of 11

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by counsel and do not amount to findings of the Court and, consequently, cannot be binding upon him. On the question of the closure of pleadings, the Claimant contends that the proceedings were subsequently reopened at the Respondent’s instance. He further submits that the matter remains part-heard since the Respondent’s witnesses are yet to be cross-examined. He therefore urges the Court to allow the application, relying on the principle that a litigant should not suffer for a mistake attributable to counsel. 5. The Claimant filed written submissions in support of the application, while the Respondent elected to rely on its grounds of opposition. Claimant’s Submissions 6. From the outset the Claimant submits that the application is anchored on Order 8 Rule 3(1) of the Civil Procedure Rules 2010. Which empowers the court at any stage of the proceedings, to allow amendments to pleadings on such terms as may be just. Castelino [1958] EA He relies on Eastern Bakery v 461 for the principle that amendments should be liberally allowed where they are Page 5 of 11

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necessary to determine the real questions in controversy, provided any prejudice to the opposing party can be compensated by costs. He further relies on Philip Chemwolo & another v Augustine Kubende [1986] eKLR for the proposition that a litigant should not, absent fraud or an intention to overreach, be deprived of a determination on the merits due to a blunder attributable to counsel. 7. The Claimant submits that the proposed amendments are narrow in scope and are intended merely to restore portions of the Memorandum of Claim which he had authorised his former advocate to plead. He states that the version he approved on 4th August 2025 included a claim for severance pay of Kshs. 260,667/-, general damages for emotional distress, reputational harm and breach of data protection rights, as well as a declaration of continued employment for the period January to June 2025. He contends that, when the Memorandum of Claim was subsequently filed on 11th August 2025, those claims were either omitted or curtailed without his authority. The Claimant therefore submits that the Page 6 of 11

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proposed amendments do not introduce a new cause of action but merely restore the case he had instructed his former advocate to present. 8. The Claimant further submits that the discrepancy between the pleadings he authorised and those filed in Court was not attributable to him. He relies on his Handing-Over Letter dated 24th July 2025, which, he contends, demonstrates that although he permitted his former advocate to exercise professional judgment, such discretion was subject to preserving the factual basis and legal claims of his case. He argues that the omission of the severance and general damages claims, as well as the narrowing of the prayer concerning continuity of employment, fell outside that authority. The Claimant maintains that allowing the amendments will not occasion substantial prejudice to the Respondent, as the substance of the claims had already been brought to its attention through the subsequent pleadings and submissions. He further submits that the proposed amendments will not necessitate the recall of witnesses or the reopening of evidence and that any Page 7 of 11

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prejudice suffered by the Respondent would, in any event, be minimal and adequately compensable by costs. 9. The Claimant further submits that this Court has already applied the same principle in the present cause. He refers to the Court’s ruling of 23rd March 2026, by which the Respondent was permitted to reopen its case after invoking the principle in Chemwolo v Kubende (supra). He asserts that it would be inconsistent for the Court to extend that latitude to the Respondent but deny similar relief to him where the default complained of is attributed to his former advocate. 10. On the proposed Supplementary List of Documents, the Claimant submits that the two documents sought to be introduced were also supplied to his former advocate but were omitted from the List of Documents filed with the Memorandum of Claim. He contends that the documents are already referred to in his Witness Statement and therefore do not introduce new facts, but merely regularise the evidentiary record. He relies further on the Court’s ruling of Page 8 of 11

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25th May 2026, in which the Respondent was permitted to rely on a second witness statement following the reopening of its case, submitting that he seeks equivalent latitude. 11. Finally, the Claimant submits that the application was brought promptly upon discovery of the omissions. He states that he became aware of the discrepancy between the pleadings he had authorised and those filed in Court on 30th – 31st July 2026 during cross-examination and thereafter filed the present application within days. He therefore urges the Court to allow the application and grant leave to amend and serve the Amended Memorandum of Claim and the Supplementary List of Documents, with the costs of the application abiding the outcome of the suit. Disposition 12. The motion before the Court is one on amendment of pleadings. The Court of Appeal held in the case of Eastern Bakery v Castelino [1958] EA 461 as follows: “Amendments to pleadings sought before the hearing should be freely allowed if they can be made without Page 9 of 11

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injustice to the other side, and there is no injustice if the other side can be compensated by costs.” 13. The decision is one that indicates clearly that amendments prior to hearing should be freely given. In this case, the Claimant now seeks to make an amendment after he testified. In my considered view, the intended amendment is not one that is intended to enable this Court determine the real issues in controversy between the parties. It is clear the amendment ought is meant to cure the defects of the case as exposed in cross-examination by the Respondent. If indeed the previous counsel on record for the Claimant did not avail of the amendment sought and did not articulate the claim properly, why was the amendment not made in October 2025 before the matter was indicated as ready for hearing? Where is this vaunted direction to his former counsel? Why is the proposed amendment not anywhere in his letters or correspondence? I would have been pleased to see the Claimant’s take on the pleadings filed. Did he peruse them? The amendment sought cannot be equated to the reopening of the case which had proceeded ex parte in the absence of the Respondent. One relates to an Page 10 of 11

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Article 50 right and the other relates to exercise of judicial discretion in either granting or denying an amendment sought after the hearing of the case is almost complete. 14. It is my finding that the express object for this proposed amendment of pleadings, is one intended to cure apparent defects in the case by the Claimant. In essence the Claimant seeks to panel beat his case and this is manifestly unfair to the Respondent against whom such an amendment is sought as it will deprive it of the benefit of a defence that has crystalised in respect to certain aspects of the claim before the Court. The foregoing is ample to demonstrate that the appropriate course is to decline the motion. Application dismissed with costs to the Respondent. It is so ordered. Dated and delivered at Kisumu this 23rd day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 11 of 11

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