https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5089

REPUBLIC OF KENYA **IN THE ENVIRONMENT AND LAND COURT OF KENYA** **AT HOMA BAY** **ELC CASE NO. E001 OF 2023 (O.S)** MONICA ADOYO ABOK (Suing as legal Representative of JOSEPH OCHIENG ODOTE) ..................APPLICANT **VERSUS** OGETA NYAKINDA Alias CHARLES OGETA NYAKINDA........................................RESPONDENT **RULING** 1. Before this Court is the Notice of Motion dated 17th November 2025 brought under Sections 1, 1A, 1B and 3A of the Civil Procedure Act and Order 8 and Order 50 Rule 1 of the Civil Procedure Rules, 2010. The Applicant seeks the following orders: 2. That leave be granted to the Applicant to amend the Originating Summons in terms of the draft Amended Originating Summons annexed to the application. 3. That the draft Amended Originating Summons be deemed as duly filed and served upon payment of the requisite court fees. 4. That the costs of the application be in the cause. 5. The application is supported by the affidavit of **Monika Adoyo Abok**, sworn on 17th November 2025. The Applicant states that she instituted the suit as the legal administrator of the estate of the late **Joseph Ochieng Odote**, claiming that the deceased purchased land parcel **KANYALUO/KOBILA/KOMUOYO/842** from the Respondent and that the Respondent holds the same in trust, while also seeking relief founded on adverse possession. 6. The Applicant depones that upon filing the suit, her advocate pleaded that she had established her homestead on the suit land and had been residing thereon. She now states that the information was erroneous, having been communicated inadvertently to her advocate, and that the correct position is that her occupation of the suit land has been through cultivation of crops used to sustain her family. She contends that the proposed amendment merely seeks to accurately reflect the nature of her occupation and that no prejudice will be suffered by the Respondent or the Interested Parties since the hearing of the suit has not commenced. 7. The application is opposed by the Respondent through a replying affidavit sworn on 18th December 2025. The Respondent contends that the Applicant had previously amended her pleadings after leave of the Court had been granted. He further avers that the matter has been pending for approximately three years and has twice been referred to alternative dispute resolution. According to the Respondent, the Applicant has admitted that the earlier pleadings contained falsehoods, demonstrating that she approached the Court without clean hands. He argues that the intended amendment is brought in bad faith, is meant to delay the hearing of the suit, and would occasion prejudice by requiring the proceedings to begin afresh. 8. The 1st Interested Party also opposed the application through a replying affidavit dated 17th December 2025. It is deponed that the Applicant denied occupying the suit land during the alternative dispute resolution process and that the present attempt to amend the pleadings demonstrates inconsistency in her case. The Interested Party further argues that the application has been brought after inordinate delay and amounts to a fishing expedition. 9. The application was canvassed by way of written submissions. The Applicant filed submissions dated 12th March 2026 relying on **Order 8 of the Civil Procedure Rules**, **Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000] eKLR**, and **Julius Nzioki Wambua v Mohamed Salim Khamis & Another [2020] eKLR**, urging the Court to freely allow amendments so that the real issues in controversy may be determined. 10. The Respondent and the 1st Interested Party filed submissions dated 10th July 2026 opposing the application. They submitted that the proposed amendment is founded on falsehoods, is unsupported by evidence, and is intended to prejudice the Respondent by altering the Applicant's case after considerable delay. **Determination** 1. I have considered the application, the affidavits on record, and the rival submissions by counsel. The sole issue falling for determination is whether the Applicant has satisfied the conditions for grant of leave to amend the Originating Summons. 2. Amendment of pleadings are generally governed by Section 100 of the Civil Procedure Act which provides as follows; ***“The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding”.*** 1. Order 8 Rule 1 (1) of the Civil Procedure Rules stipulates that; **“The Court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.”** 1. Under Order 8 Rule 5 it is stipulated that; **“An amendment shall 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 has already been claimed in the suit by the party applying for leave to make the amendment”.** 1. Further, **Halsbury’s Laws of England, 4th Edition (re-issue) Vol.36(1) at Paragraph 76** sets out the requirements for an amendment thus; ***“…The purpose of the amendment is to facilitate the determination of the real question in controversy between the parties to any proceedings and for this purpose the Court may at any stage order the amendment of any document, either on application by any party to the proceedings or of its own motion.”*** 1. In the case of **Eastern Bakery vs Castelino (1958) EA 461,** Sir Kenneth O’Conner stated that; ***“It will be sufficient … to say 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.”*** 1. The guiding principles governing amendment of pleadings were also authoritatively stated by the Court of Appeal in **Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000] eKLR**, where the Court held that amendments should generally be freely allowed provided that they are made in good faith, do not occasion injustice incapable of compensation by costs, and are necessary for determining the real questions in controversy between the parties. 2. It is not disputed that the Applicant seeks to amend her pleadings to correct the description of the nature of her occupation of the suit land. Whereas the original pleadings alleged that she had established a homestead and resided on the land, the proposed amendment states that her occupation has been through cultivation. The explanation offered is that the earlier information communicated to her advocate was erroneous. 3. The Respondent and the Interested Party have strongly argued that this admission demonstrates dishonesty on the Applicant's part and that she should not be permitted to benefit from her own falsehoods. While this argument raises legitimate concerns regarding the Applicant's credibility, the Court must distinguish between issues relating to amendment of pleadings and issues relating to proof of the pleaded facts. 4. Whether the Applicant has indeed cultivated the land, whether she ever resided thereon, and whether the earlier averments were deliberately false are matters that go to the weight and credibility of her evidence. Those are issues that can only properly be determined after hearing oral evidence during the trial. At this interlocutory stage, the Court is not called upon to determine the truthfulness of the competing factual assertions. 5. The proposed amendment does not introduce a new cause of action. The suit remains one concerning the Applicant's claim over the suit property. The amendment merely seeks to alter the factual basis upon which occupation is pleaded. Consequently, the Respondent will have a full opportunity to file an amended response, challenge the Applicant's evidence through cross-examination, and demonstrate any inconsistencies during the hearing. 6. Although the application has been brought after some delay, the Court notes that the hearing of the substantive suit has not commenced. No witness has testified. In those circumstances, any prejudice likely to be suffered by the Respondent or the Interested Parties can adequately be remedied by granting them leave to amend their responses and by an appropriate award of costs. 7. The overriding objective under Sections 1A and 1B of the Civil Procedure Act obligates the Court to facilitate the just, expeditious, proportionate and affordable resolution of disputes. Denying the amendment at this stage would likely result in the dispute being determined on pleadings which the Applicant herself now states do not accurately reflect her case. The interests of justice are better served by allowing the amendment so that the dispute is determined on its true merits. 8. I am therefore satisfied that the proposed amendment is necessary for determining the real issues in controversy and that no prejudice incapable of compensation by costs has been demonstrated. **Orders** 1. Consequently, the Notice of Motion dated 17th November 2025 is hereby allowed on the following terms: 1. Leave is hereby granted to the Applicant to amend the Originating Summons in terms of the draft Amended Originating Summons annexed to the application. 2. The Amended Originating Summons shall be filed and served within **seven (7) days** from the date hereof upon payment of the requisite court fees. 3. The Respondent and the Interested Parties shall be at liberty to file and serve amended responses, if necessary, within **fourteen (14) days** of service. 4. The costs of the application shall be in the cause. **RULING DATED AND DELIVERED AT HOMA BAY VIA TEAMS PLATFORM THIS 28TH DAY OF JULY 2026.** **In the Presence of**; 1. Kimberly for Obwanda for the applicant-Present 2. Kenneth Odhiambo for 1st Interested Party- Present 3. Caroline Lucy Atieno – Represented by 1st Interested Party 4. Court Assistant; Awino. JUSTICE J.W WANYONYI- JUDGE 28/7/2026