https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5327

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) (21 August 2026) (Ruling) Neutral citation: [2026] KEELC 5327 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Petition E002 of 2025 EK Wabwoto, J August 21, 2026 Between Hamilton Omondi Manyala 1st Petitioner Esther Akinya Agola 2nd Petitioner Rashid Otieno Ouko 3rd Petitioner christine Akoth Bongo 4th Petitioner Suing as Members of Kibuye Market Traders and City Manager, County Government of Kenya 1st Respondent City Board 2nd Respondent County executive committee member for Trade, County Government of Kisumu 3rd Respondent County Government of Kisumu 4th Respondent Ethics and Anti-corruption Commission 5th Respondent Ruling 1.Before the Court for determination is the Petitioners/Applicants' Notice of Motion dated 30th June 2026, expressed to be brought under 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 and all enabling provisions of the law. 2.The Motion seeks the following substantive orders; that the Petitioners/Applicants be granted leave to amend their Petition dated 28th April 2025 in the manner and form set out in the Draft Amended Petition annexed to the supporting affidavit; that the said Draft Amended Petition be deemed as duly filed and served upon payment of the requisite court fees; that the Respondents be at liberty to file and serve their respective amended responses or replies within fourteen (14) days from the date of service of the Amended Petition; and that the costs of the application be in the cause. 3.The Motion is premised upon the grounds appearing on its face, lettered A to G, and is supported by the affidavit of Hamilton Omondi Manyala, the 1st Petitioner, sworn on 30th June 2026. It was certified urgent by counsel. Background 4.A brief recital of the procedural history of this matter is necessary for a proper appreciation of the issues that arise. 5.By a Petition dated 28th April 2025, the Petitioners, who describe themselves as traders at and members of Kibuye Market, moved this Court challenging what they termed the irregular, unprocedural and discriminatory closure of Kibuye Market by the Respondents, and the threatened relocation of the traders to Uhuru Business Market. The Petition additionally impugned the management and utilisation of Kshs. 415,000,000/= said to have been applied in the year 2021 towards the upgrading of Kibuye Market, and sought that the 5th Respondent investigate the same. 6.Contemporaneously with the Petition, the Petitioners filed a Notice of Motion dated 28th April 2025 seeking conservatory orders. On 2nd May 2025, Hon. Lady Justice E. Asati issued conservatory orders suspending the closure of Kibuye Market and suspending the relocation of the traders to Uhuru Market, in each case pending the hearing and determination of that application. The parties were at the same time encouraged to attempt alternative dispute resolution, and directions were given for the filing of replies and written submissions. 7.The 1st to 4th Respondents in turn filed their own Notice of Motion dated 9th May 2025. 8.The parties thereafter negotiated. They recorded a consent dated 24th July 2025, which was adopted as an order of this Court by Hon. Justice S. Okong'o on 31st July 2025 in the following terms:“The petitioners' Application dated 28th April, 2025 and the Respondents' Application dated 9th May 2025 be compromised in the following terms:a)There be a joint cleaning exercise carried out by the Kibuye Market Traders and the County Government of Kisumu with effect from 1st August 2025 for a period of 180 days.b)The joint cleaning exercise will not affect the day to day business of the Kibuye market traders.c)There will be no relocation of the traders from Kibuye Market to Uhuru Market or any other market.d)The matter be mentioned after 180 days to confirm compliance or further orders of the court.e)Each party to bear their own cost.” 9.The same order fixed a mention on 12th November 2025 for further orders. 10.By a letter dated 8th April 2026, the advocates for the 1st to 4th Respondents wrote to the Petitioners' advocates contending that the consent had been complied with, that the substratum of the dispute being the relocation of the traders had been resolved, and inviting the Petitioners to have the Petition marked as closed with each party bearing its own costs. The Petitioners did not accede to that invitation. They instead intimated an intention to amend the Petition, were directed to file a formal application, and the present Motion followed. The Application 11.The grounds on the face of the Motion may be summarised as follows: that the initial Petition was filed on 28th April 2025 to challenge the unlawful and unprocedural closure of Kibuye Market; that subsequent to that filing the Respondents, through their agents and servants, escalated their actions and unlawfully attempted forcibly to evict the Petitioners from the market premises; that those actions resulted in the extensive destruction, damage and loss of substantial property belonging to the Petitioners and completely disrupted their livelihoods; that it is necessary to amend the Petition so as to introduce these developments by way of a new paragraph 31(A) and a formal prayer for general damages; that the proposed amendments are crucial for the real and comprehensive determination of all the issues in dispute; that the Respondents will suffer no prejudice incapable of compensation by an award of costs, since they will have an opportunity to reply to the Amended Petition; and that it is in the interest of justice, equity and fair administrative action that the application be allowed. 12.In his supporting affidavit, the 1st Petitioner deposes that he is a trader at Kibuye Market and swears on his own behalf and with the express authority of the 2nd, 3rd and 4th Petitioners. He avers that subsequent to the filing of the Petition, the 1st and 2nd Respondents, by themselves, their agents or persons acting under their authority, took active steps forcibly to evict the Petitioners from their trading premises without any due process; that those high-handed actions resulted in the extensive destruction, damage and loss of substantial property belonging to the Petitioners, occasioning immense financial distress, loss of business and total disruption of livelihoods; that he is advised by his advocates on record, which advice he believes to be true, that these fresh acts of property destruction and forced eviction violate the Petitioners' constitutionally guaranteed rights to property and to fair administrative action; that in light of those supervening developments it has become necessary to amend the Petition; that the application is made timeously and in good faith and so as to avoid a multiplicity of suits; and that the Respondents stand to suffer no prejudice whatsoever. 13.The proposed amendments are, in substance, two in number. The first is a new paragraph 31(A), which reads:“That the Respondents, either by themselves, their agents, servants and/or persons acting under their authority or direction, unlawfully and without due process attempted to forcibly evict the Petitioners from their respective trading premises at Kibuye Market, which actions resulted in the destruction, damage and/or loss of substantial property belonging to the Petitioners, thereby occasioning enormous financial loss, disruption of livelihoods and violation of their constitutionally guaranteed rights to property and fair administrative action.” 14.The second is a new prayer 7A, which reads:“That the Honourable Court be pleased to award the Petitioners general damages for the unlawful destruction of their property, loss of business and livelihood, and for the violation of their constitutional rights, together with any other relief the Court may deem just and expedient.” 15.Save for those two additions, the Draft Amended Petition annexed to the supporting affidavit and marked “HOM-1” is in all material respects identical to the Petition dated 28th April 2025. The response 16.The Motion is opposed by the 1st to 4th Respondents through a Replying Affidavit sworn on 24th July 2026 by Felgona Atieno Omondi, their advocate on record. The 5th Respondent neither responded to the Motion nor participated in its disposal. 17.The deponent avers that the Petitioners were at all material times traders within Kibuye Market; that on 25th April 2025 the 1st Respondent issued orders closing the market on account of an imminent outbreak of cholera; that given the imminence of that threat, notice to the traders could not suffice; that the decision to close the market was taken on the advice of public health officers within Kisumu County, whose notices, statements and reports are annexed; that the notice of 25th April 2025 issued by the County Director of Public Health and Sanitation outlined the risk which the market posed to the residents of Kisumu and recommended that it be closed for cleaning; that an alternative trading space was made available to the Petitioners at Uhuru Market for the duration of the cleaning; and that the market was in the event closed for less than seven days before the conservatory orders of 2nd May 2025 issued. 18.It is further deposed that during the period of closure there was no extensive destruction, damage or loss of substantial property belonging to the Petitioners; that the market was simply closed at the main gate and the traders were not permitted to sell their wares within the premises; that since the conservatory orders issued the Respondents have made no attempt to evict the Petitioners; and that the Petitioners are put to strict proof of any unlawful attempt forcibly to evict them. 19.On the negotiations, the deponent, who states that she personally took part in them, avers that the only issue discussed was the proposed relocation of the traders to another market, which they opposed; that the traders raised no other issue; that the parties agreed that the traders would remain in the market and assist the Respondents in cleaning it; and that the consent of 31st July 2025 was recorded on that basis, whereafter the matter was to be marked as closed. 20.The deponent contends that the proposed amendment is an attempt to introduce new facts after the application and the Petition had been compromised by the consent; that the closure occurred in April 2025 and the Petitioners now seek to persuade the Court that they conveniently forgot, a full year later, to plead that their property had been destroyed; that the Amended Petition seeks compensation over a fact that does not exist and did not happen; that the matters raised are constitutional in character and border on criminal liability and upon the propriety of a tendering process, over which this Court has no jurisdiction; and that prayers 6 and 7 of the Petition in any event fall outside the jurisdiction of this Court. She prays that the Motion be struck out as malicious, frivolous and a waste of the Court's time, with costs to the 1st to 4th Respondents. Submissions 21.When the Motion came up before the Court, directions were given for its disposal by way of written submissions. The 1st to 4th Respondents duly filed submissions dated 6th August 2026. The Petitioners/Applicants, notwithstanding the directions of the Court and notwithstanding that the Motion is their own, did not file any written submissions at all. 22.That default is regrettable and I do not condone it. Written submissions are the ordinary means by which a party assists the Court to a correct conclusion, and a litigant who moves the Court urgently and then declines to argue his own Motion does neither himself nor the Court any service. It is, however, settled that a failure to file submissions is not by itself fatal, and it does not entitle the Court to dismiss an application without more. Submissions are neither pleadings nor evidence; they do not add to, and cannot subtract from, the material properly on the record. The Petitioners' case is set out in the grounds on the face of the Motion, in the supporting affidavit and in the Draft Amended Petition, and this Court remains under a duty to consider that material and to determine the Motion on its merits. I have accordingly done so, and in doing so I have been careful to give the Petitioners the benefit of the case they have pleaded, notwithstanding that it has not been argued. 23.The 1st to 4th Respondents' submissions may be summarised thus. The general power to amend is conferred by Section 100 of the Civil Procedure Act, and its exercise is discretionary; that discretion is judicial and must be exercised rationally and upon settled principles WAB Hotels Ltd (In Receivership) & another v Industrial Development Bank Ltd [2020] KECA 750 (KLR), citing Mbogo & another v Shah [1968] EA 93. The purpose of an amendment is to facilitate the determination of the real question in controversy, as stated in Halsbury's Laws of England, 4th Edition (re-issue), Vol. 36(1) at paragraph 76. However, the Court will not permit an amendment which is inconsistent with the original pleading and which entirely alters the nature of the claim Abdul Karim Khan v Mohamed Roshan (1965) EA 289 and the applicable principles are collected in Ochieng & Others v First National Bank of Chicago, Civil Appeal No. 147 of 1991. 24.It is submitted that the crux of the Petitioners' suit was the prevention of their relocation from Kibuye Market; that the proposed prayer for general damages was never pleaded, introduces an entirely new cause of action and departs from that crux; that the claim is founded upon an act which simply did not occur; that the consent of 31st July 2025 compromised both the application and the Petition, whereupon the Court became functus officio save for awaiting the lapse of the 180 days and closing the file; that a consent order takes effect as a contract and may be set aside only on grounds which would justify the setting aside of a contract Flora Wasike v Destimo Wamboko (1982–1988) 1 KAR 625, Brooke Bond Liebig v Mallya [1975] EA 266 and Hirani v Kassam (1952) 19 EACA 131; that allowing the amendment would necessarily entail setting aside the consent; that the prayer for general damages is a heavy, unforeseen and irreversible financial burden which the Respondents cannot bear; and that the amendment is sought in bad faith Jobling v Firearms Licensing Board [2022] KECA 1170 (KLR) and Britam General Insurance Company Limited v Tawaman Holdings Limited & another [2025] KEHC 14194 (KLR). The Respondents pray that the Motion be dismissed with costs and that the matter be marked as settled. Issues for determination 25.I have considered the Motion and the grounds on its face, the supporting affidavit and its annexures, the Draft Amended Petition, the Replying Affidavit and its annexures, the written submissions of the 1st to 4th Respondents and the authorities cited therein, together with the entire record. In my respectful view, the following issues arise for determination:i.Whether, by reason of the consent order recorded and adopted on 31st July 2025, this Court is functus officio and thereby precluded from entertaining the Motion;ii.Whether the Petitioners ought to be granted leave to amend the Petition dated 28th April 2025; andiii.What orders should issue, and who should bear the costs. Analysis and determination (i) Whether the Court is functus officio 26.It is convenient to begin with the consent, for upon it the whole of the Respondents' opposition is built. If the Petition stood wholly compromised on 31st July 2025, there would be nothing left upon which an amendment could operate, and the Motion would fail in limine. 27.I accept, without reservation, the principles urged upon me by the Respondents as to the nature and effect of a consent order. In Flora Wasike v Destimo Wamboko (supra), Hancox JA (as he then was) held that a consent judgment or order has contractual effect and can be set aside only upon grounds which would justify the setting aside of a contract, or where certain conditions remaining to be fulfilled are not carried out. To the same effect are Brooke Bond Liebig v Mallya and Hirani v Kassam (both supra). Those authorities are good law and they bind this Court. A consent recorded between parties who are represented by counsel is not to be lightly disturbed, and I do not propose to disturb this one. 28.But it is precisely because a consent order takes effect as a contract that it falls to be construed as a contract, according to the terms in which the parties chose to express themselves. The Court can no more enlarge a compromise beyond what the parties actually agreed than it can cut it down. The question before me is therefore not whether the consent binds the parties plainly it does but what it binds them to. 29.The operative words are these: “The petitioners' Application dated 28th April, 2025 and the Respondents' Application dated 9th May 2025 be compromised in the following terms.” What was compromised, on the plain language of the instrument, were two interlocutory applications. The Petition dated 28th April 2025 is nowhere mentioned in the consent. It was not withdrawn. It was not dismissed. It was not marked as settled. 30.Three features of the record confirm that reading. First, clause (d) of the consent itself provided that the matter be mentioned after 180 days “to confirm compliance or further orders of the court”, and the order of 31st July 2025 went on to fix a mention on 12th November 2025 “for further orders”. Parties who intend to bring a suit to an end do not ordinarily provide for further orders in it. Secondly, the consent contains no release, no waiver, and no clause expressed to be in full and final settlement of all claims arising out of the closure of Kibuye Market. Had the parties intended a global compromise of every claim, present and future, arising from the events of April 2025, it was open to them to say so in terms; they did not. Thirdly, and tellingly, the Respondents' own advocates by their letter of 8th April 2026 prayed “that the petition be marked as closed”. One does not ask that a suit be marked as closed if it is already closed. That letter is, in my view, a contemporaneous acknowledgment by the Respondents themselves that as at April 2026 the Petition remained alive upon the Court's record. 31.I therefore hold that the consent adopted on 31st July 2025 compromised the Notice of Motion dated 28th April 2025 and the Notice of Motion dated 9th May 2025, and nothing more. In respect of those two applications, and to the extent of the terms recorded, this Court is indeed functus officio and will not revisit them. The Petition dated 28th April 2025, however, remains pending and undetermined. It follows that there subsists a pleading capable of amendment, and the objection taken in limine fails. 32.Lest there be any misunderstanding, I should add at once that the leave I am minded to grant neither disturbs nor can disturb the consent. Nothing in this Ruling is to be read as reopening the question of the closure of Kibuye Market or of the relocation of the traders to Uhuru Market or to any other market. Those questions were settled by the agreement of the parties, and they remain settled. (ii) Whether leave to amend should be granted 33.The power to amend is conferred by Section 100 of the Civil Procedure Act and by Order 8 of the Civil Procedure Rules, 2010, and in a constitutional petition it falls to be exercised with the added latitude which Article 159(2)(d) of the Constitution enjoins, namely that justice shall be administered without undue regard to procedural technicalities. 34.The governing principles are settled, and they were for the most part correctly stated in the Respondents' submissions. In Eastern Bakery v Castelino [1958] EA 461, the Court of Appeal held that amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and that there is no injustice if the other side can be compensated by costs. In Ochieng & Others v First National Bank of Chicago (supra) the Court held, among other things, that the power to allow amendments is intended to determine the true substantive merits of the case; that amendments should be timeously applied for; that the power may be exercised at any stage of the proceedings; that however late the amendment is sought it should as a general rule be allowed if made in good faith, provided costs can compensate the other side; and that a party will not be permitted to reframe his claim so as to deprive his opponent of an accrued right to rely upon the Limitation of Actions Act. In Britam General Insurance Company Limited v Tawaman Holdings Limited & another (supra) the practical rule was put thus: amendments will always be allowed unless the application is mala fide, or unless the amendment would occasion an injustice to the other side which cannot be compensated by costs. 35.Three qualifications of principle bear emphasis, for they dispose of much of what was urged before me. 36.First, upon an application for leave to amend, the Court does not try the proposed claim. The merits, or the demerits, of the pleading sought to be introduced are for the hearing. The Court will of course refuse leave where the proposed amendment is obviously and incontestably bad, or discloses no cause of action at all, or is a nullity; but it will not embark upon the determination of contested questions of fact upon affidavit. That principle answers the Respondents' central complaint, which is that the eviction alleged in the proposed paragraph 31(A) simply did not occur and that no property was damaged. Those are denials. They may very well prevail at the hearing. But a denial, however emphatic and however early, does not convert a disputed allegation into an established falsehood. Were I to refuse leave upon that basis, I would be determining the very issue which the amendment is designed to raise, and determining it without evidence, without cross-examination, and in the absence of any argument from the party affected. That I decline to do. 37.Secondly, the objection that the amendment introduces a new cause of action is not, standing alone, an answer. Section 100 of the Civil Procedure Act speaks of all necessary amendments being made for the purpose of determining the real question or issue raised by or depending on the proceeding. The vice identified in Abdul Karim Khan (supra) is an amendment which is inconsistent with the original pleading and which entirely alters its nature. The proposed amendment here is not inconsistent with the Petition; it is continuous with it. The gravamen of the original Petition is the Petitioners' asserted entitlement to remain in occupation of and to trade at their premises at Kibuye Market, and the asserted unlawfulness of the Respondents' interference with that occupation. The amendment alleges a further and graver act of interference of precisely the same character, said to have occurred after the Petition was filed, and claims a remedy in respect of it. That is an enlargement of an existing claim, not the substitution of a different one. I would add that compensation is expressly among the reliefs available under Article 23(3)(e) of the Constitution in proceedings alleging the violation of a right, so that a prayer for general damages in a petition of this nature is not, on its face, untenable. 38.Thirdly, no question of limitation arises. The events pleaded are said to have occurred in the course of 2025, and the application was made in June 2026. The Respondents are not being deprived of any accrued limitation defence, which is the classic ground upon which a late amendment introducing a fresh claim is refused. It is upon that footing that the observations of Shah JA in the Ochieng case, so heavily relied upon by the Respondents, must be understood. There, the fresh claim was sought to be introduced more than six years after the event, in the teeth of a limitation defence, and against a banking institution which would have had to make provision for it. That is not this case. 39.What then of prejudice? The Respondents say that the prayer for general damages is a heavy, unforeseen, prejudicial and irreversible financial burden which they cannot bear. With respect, that submission confuses the prejudice which the law recognises with the ordinary consequence of being sued. Every defendant who faces a claim in damages is exposed to a financial burden; if that were prejudice in the relevant sense, no amendment introducing a money claim could ever be allowed. The prejudice contemplated is procedural and irremediable prejudice the loss of a defence, the loss of evidence, the inability to meet the new case. None of that is demonstrated here. The Respondents will file an amended response. They will deny the eviction, as they have already done on oath. They will put the Petitioners to strict proof, as they are fully entitled to do. They will have every opportunity at the hearing to establish, if they can, that nothing of the kind alleged ever happened. Whatever inconvenience and expense the amendment occasions them is, in my judgment, capable of being compensated in costs. 40.Nor am I persuaded that the application is made in bad faith. The Respondents point to its timing, it having followed hard upon their invitation of 8th April 2026 to close the file. Timing may excite suspicion, but suspicion is not proof. Mala fides is a serious allegation, and it must be established rather than inferred from the mere circumstance that a party has declined to abandon a suit which it is entitled to prosecute. 41.I am, however, far from satisfied with the manner in which the proposed amendment has been drawn, and this bears directly upon the terms upon which leave ought to be granted. Paragraph 31(A) is pleaded at the very highest level of generality. It does not say when the alleged forcible eviction occurred. It does not identify a single item of property destroyed, damaged or lost. It does not say which of the Petitioners, or which of the traders on whose behalf they sue, suffered what loss. It is unaccompanied by any inventory, any photograph, any valuation, or any report to any authority. The supporting affidavit is no better: it speaks of extensive destruction, damage and loss of substantial property and of immense financial distress without a single particular. Neither the Motion nor the affidavit explains the interval between the events complained of and the application. 42.A party who alleges the destruction of property and claims damages in respect of it must plead the particulars of that destruction. A pleading in the present terms tells the Respondents nothing that they can meaningfully answer, and it would leave this Court to try an unparticularised claim. Article 159(2)(d) of the Constitution is not a licence for imprecision. Nor is a constitutional petition a lesser pleading; if anything, the requirement of precision is the more pressing, the rule in Anarita Karimi Njeru v Republic [1979] KLR 154 being that a party who complains of the infringement of constitutional rights must set out with a reasonable degree of precision the right said to have been infringed and the manner of the infringement. 43.In my view, the answer to that defect is not to shut the Petitioners out, but to grant leave upon terms which cure it. That course does justice to both sides: the Petitioners obtain a hearing upon a claim which they say is genuine, and the Respondents obtain a pleading which they can actually meet. 44.Finally, I say a word upon jurisdiction. The Respondents contend that this Court lacks jurisdiction over the matters raised in prayers 6 and 7 of the Petition, touching upon the utilisation of Kshs. 415,000,000/= and upon the tendering process, and that those matters border upon criminal liability. Two observations suffice. First, those prayers are already contained in the Petition dated 28th April 2025; they are not introduced by the proposed amendment, and an objection to them is therefore not an objection to the amendment. Secondly, a challenge to jurisdiction of that character is properly raised by way of a preliminary objection or at the hearing of the Petition, upon full argument, and is not to be determined in passing upon an interlocutory application to amend. I express no view whatsoever upon it, and nothing in this Ruling forecloses the Respondents from raising it at the appropriate time and in the appropriate form. (iii) Costs 45.Leave to amend is an indulgence sought by the Petitioners. The Respondents have been put to the expense of meeting a Motion occasioned entirely by the Petitioners' own omission to plead their case fully and with particularity, and they have had to do so in the face of the Petitioners' failure to file any submissions. The ordinary rule in such a case is that the party seeking the indulgence bears the costs of and occasioned by the amendment, and I see no reason to depart from it. The prayer that the costs of the application be in the cause is accordingly declined. Disposition 46.For the reasons set out above, I find the Notice of Motion dated 30th June 2026 to be merited, though only upon terms. The final orders of the Court are as follows:i.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.ii.The Amended Petition shall be filed and served within seven (7) days of the date hereof, failing which the leave hereby granted shall lapse without further order and the Petition dated 28th April 2025 shall stand as the operative pleading.iii.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.iv.The Petitioners shall bear the costs of and occasioned by this application, which costs I assess at Kshs. 20,000/= payable to the 1st to 4th Respondents within thirty (30) days of the date hereof.Orders accordingly. DATED, SIGNED AND DELIVERED AT KISUMU THIS 21ST DAY OF AUGUST 2026.E. K. WABWOTOJUDGEIn the presence of:Mr. Omondi T. for the Petitioners/Applicants.Ms. Atieno for the 1st to 4th Respondents.No appearance for the 5th Respondent.Court Assistant: Joanne Omondi.